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■'SBin  Congress, 
Is^  Session. 


SENATE. 


Mis.  Doc. 
No.  94. 


IN  THE  SENATE  OF  THE  UNITED  STATES. 


FEBRtJART  2,  1857. — Referred  to  the  Committee  on  Claims. 
December  18,  1857. — Referred  to  the  Committee  on  Claims. 


The  Court  of  Claims  submitted  the  following 
REPORT. 

fPo  the  honorable  the  Senate  and  House  of  Representatives  of  the  United 
States  in  Congress  assembled : 

;^s!§   The  Court  of  Claims  respectfully  presents  the  following  documents 

i!iil;:;iil|i!^.3  the  report  in  the  case  of 

J.  K,  EOaERS  vs,  THE  UNITED  STATES. 

1.  The  petition  of  the  claimant, 

2.  Claimant's  brief. 

3.  Solicitor's  brief. 

4.  Opinion  of  the  Court. 

5.  Claimant's  second  petition,  filed  by  leave  of  Court. 
8.  Arguments  of  claimant  and  his  counsels. 

7.  Solicitor's  brief  on  second  petition, 

8.  Opinion  of  the  Court  adverse  to  the  claim. 

By  order  of  the  Court  of  Claims. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed  the 
-|  seal  of  said  Court  at  Washington,  this  second  day  of  February, 
•  ®-J  A.  D,  1857. 

SAM'L  H.  HUNTINGTON, 

Chief  Clerk  Court  of  Claims. 


y-X'^.$:\ 


ih  the  Honorable  Judges  of  the  Court  of  Claims: 

The  petition  of  J.  K.  Rogers,  for  himself  and  in  behalf  of  Chero- 
kees  residing  in  States  east  of  the  Mississippi,  numbering  2,133  per- 
sons, according  to  the  census  taken  by  the  Indian  department  in 
1851,  respectfully  showeth  :  That  your  petitioner  and  said  Cherokees, 
by  the  treaty  of  1835  and  supplement  thereto,  are  entitled  to  their 
proportionate  share  per  capita  of  $704,947  16  over  and  above  the  sum 
of  |9 14,026  13,  found  due  as  per  statement  of  the  accounting  officers 


V 


V. 


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1//S 


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^  J.   K    ROGERS. 

of  the  treasury  and  the  settlement  made  by  Congress  in  1851,  in  pur- 
suance of  the  principles  established  by  the  treaty  of  August,  1846. 

This  claim  is  based  principally  on  the  12th  and  15th  articles  of 
the  treaty  of  1835,  and  amounts  in  the  aggregate  to  $92,625  19. 
$5,000,000  was  given  to  the  Cherokees  east  for  their  lands  and  pos- 
sessions, and  $600,000  was  given  in  lieu  of  reservations,  spoliations, 
pre-emptions,  removal,  and  all  claims  against  the  government  of  the 
United  States,  not  otherwise  expressly  provided  for,  and  any  expendi- 
ture made  out  of  the  $5^000,000,  in  payment  of  these  items,  was  a 
misapplication  of  the  fund,  and  the  United  States  was  bound  to  make 
it  good.  That  the  fund  was  applied  in  part  for  these  purposes,  is  a 
fact  that  cannot  be  controverted  or  denied.  Kemoval  and  spoliations 
amounted  to  a  much  larger  sum,  whilst  reservations,  pre-emptions, 
spoliations,  salaries  of  government  agents,  and  other  incidental  ex- 
penses incurred  in  the  execution  of  the  treaty,  were  charged  to  the 
$5,000,000  iund.  In  1838  Congress  made  a  further  appropriation  of 
$1,047,067,  in  full  for  all  objects  specified  in  the  third  supplemental 
article  of  the  treaty  of  1835  between  the  United  States  and  the  Chero- 
kees; and  for  the  further  object  of  aiding  in  the  subsistence  of  the 
Indians  for  one  year  after  their  removal  west,  provided  that  no  part 
of  said  money  shall  be  deducted  from  the  $5,000,000  stipulated  to  be 
paid  to  said  tribe  of  Indians  by  said  treaty. 

The  report  of  the  accounting  officers  of  the  treasury,  prepared  in 
obedience  to  a  resolution  of  Congress,  ^hows  that  removal  and  sub- 
sistence alone  amounted  to  the  enormous  sum  of  $2,952,196  26,  a 
sum  greater  by  $1,305,129  26  than  the  $600,000,  and  the  sum  of 
$1,047,06*7  appropriated  by  the  act  of  June  12,  1838.  This  excess  of 
$1,305,129  26  was  paid  out  of,  and  deducted  from  the  $5,000,000 
fund,  in  violation  of  the  treaty  of  1835  and  proviso  of  said  act.  In 
consequence  of  these,  and  other  extravagant  and  improper  expendi- 
tures taken  from  the  $5,000,000,  it  was  found  that  the  balance  left 
for  per  capita  distribution  was  scarcely  worth  demanding.  These 
facts  were  brought  to  the  notice  of  Congress  in  1842,  and  the  Senate 
and  House  of  Representatives  passed  resolutions  clothing  their  re- 
spective committees  on  Indian  affairs  with  power  to  send  for  persons 
and  palmers.  The  Senate  committee  did  not  act,  inasmuch  as  it  was 
thought  the  investigation  belonged  more  appropriately  to  the  House. 
The  House  committee  commenced  the  investigation,  and  Mr.  Harris, 
of  Virginia,  made  a  report  in  part  in  1842.  At  the  following  session 
it  was  again  resumed,  and  Mr.  Cooper,  of  Pennsylvania,  chairman, 
reported  the  facts  obtained  by  the  investigation  to  the  House,  (House 
doc.  No.  — .) 

No  further  action  was  taken  by  Congress  on  the  subject  until  after 
the  negotiation  of  the  treaty  of  1846.  One  of  the  principal  objects  of 
this  treaty  was  to  settle  the  difficulties  which  had  for  a  considerable 
time  existed  between  the  difierent  portions  of  the  people,  constituting 
and  recognized  as  the  Cherokee  nation  of  Indians,  and  also  to  settle 
certain  claims  that  existed  on  the  part  of  the  Cherokee  nation,  and 
portions  of  the  Cherokee  people,  against  the  United  States.  The 
Ross,  or  national  party,  claiming  all  moneys  due  the  Cherokees,  and 
subject  to  the  per  capita  division  under  the  treaty  of  1835,  and  the 


J.    K.   ROGERS.  3 

treaty  party  claiming  indemnity  for  losses  incurred  in  consequence  of 
the  treaty  of  1835,  while  the  old  settlers  claimed  indemnity  from  the 
United  States  for  permitting  them  to  be  robbed  of  their  country,  and 
despoiled  of  their  governm<=nt  by  the  Cherokees  emigrating  under 
the  treaty  of  1835.  To  settle  these  difficulties  and  claims,  and  pro- 
vide compensation  to  the  old  settlers  for  the  undivided  interest  which 
the  United  States  regarded  them  as  owing  in  the  country  east  of  the 
Mississippi,  under  the  equitable  operation  of  the  treaty  of  1828,  was 
the  object  of  the  treaty  of  1846. 

Articles  3  and  9  of  said  treaty  establishes  the  basis  of  settlement 
with  the  Cherokee  emigration  under  the  treaty  of  1835.  Article  4 
specifies  the  mode  and  manner  of  settlement  with  the  old  settler 
Cherokees.  The  duty  of  stating  the  accounts  according  to  the  prin- 
ciples of  the  treaty  of  1846^  was  committed  by  joint  resolution  of 
Congress  of  the  Tth  of  August,  1848,  to  the  Second  Auditor  and 
Second  Comptroller  of  the  Treasury.  The  result  of  their  labors  is 
presented  in  their  report  of  December  3,  1849;  and  on  the  8th  of  Au- 
gust, 1850,  Mr.  Sebastian,  from  the  Committee  on  Indian  Affairs, 
made  a  report  to  the  Senate,  adopting  in  part  the  report  of  said  ac- 
counting officers.     They  make  a   balance  due   the  Cherokee  nation 

of $627,683  95 

To  this  the  committee,  acting  as  umpire,  added  for  in- 
cidental expenses  connected  with  the  removal 96,999  42 

For  subsistence  unpaid,  or  rather  overcharged 189,422  76 

Making  in  the  aggregate  the  sum  of. 914,026  13 

due  the  eastern  Cherokees,  according  to  the  principles  of  the  treaty 
of  1846. 

The  committee,  after  deducting  all  proper  charges  from  the 
$5,600,000,  according  to  the  basis  of  the  4th  article  of  the  treaty  of 
1846,  leave  a  balance  of  $1,571,346  55,  and  allowed  a  sum  equal  to 
one-third  of  this  balance  to  the  old  settlers  for  their  interest  in  the 
Cherokee  country  east,  being  $523,782  18;  making  a  difference  of 
$657,320  40  in  favor  of  the  Cherokees  under  the  treaty  of  1835,  over 
and  above  the  $914,026  13  declared  to  be  due  them  under  the  treaty 
of  1846.  To  this  balance  of  $1,571,346  55  must  be  added  $22,212  76, 
the  amount  charged  by  Senate  committee  for  expenses  of  Cherokee 
committee,  which  was  improperly  deducted  from  the  $5,000,000  fund, 
it  not  being  one  of  the  items  specified  in  the  loth  article  of  the  treaty 
of  1835,  and  also  $25,414  09,  an  amount  greater  than  the  $600,000 
provided  for  removal  and  spoliations  in  the  third  supplemental  article 
and  im])roperly  deducted  ;  which  sums  being  added  to  the  $657,320  40, 
would  make  $704,647  16  due  the  Cherokees  under  the  treaty  of  1835  ; 
of  which  the  Cherokees  residing  in  States  east  would  be  entitled  to 
their  proportionate  share  ;  the  Cherokees  west  being  concluded  by  the 
treaty  of  1846.  Divide  this  sum  equally  between  16,231,  this  being 
the  number  of  Cherokees  both  east  and  west  by  the  census  of  1851, 
under  which  the  $914,026  13  was  paid  per  capita,  and  it  would  give 
each  person  $43  43  per  head.  The  old  settler  Cherokees  were  not 
included  in  this  census,  neither  did  they  participate  in  the  division. 
The  Cherokees  emigrating  under  the  treaty  of  1835  have  no  further 


4  J    K    ROGERS. 

claim  to  per  ca'pita,  being  concluded  by  the  treaty  of  1846,  and  tlie 
final  settlement  of  February  27,  1851  ;  and  the  number  of  Cherokee® 
east,  by  th^census  aforesaid,  who  are  entitled  to  per  capita,  being 
2,133  at  the  rate  of  |43  43  per  head,  would  give  them  in  the  aggregate, 
as  their  proportionate  share  of  this  amount  still  due,  the  sum  of 
|92,625  19,  on  which  they  claim  interest  at  the  rate  of  5  per  cent, 
per  annum  from  the  12th  day  of  June,  1838,  until  paid.  The  report 
of  the  committee  was  concurred  in  by  the  Senate,  and  Congress  made 
an  appropriation  to  carry  it  into  effect. 

This  claim,  as  stated,  is  based  principally  on  the  12th  and  15tli 
articles  of  the  treaty  of  1835  and  supplement  thereto,  and  any  im- 
proper deductions  made  from  the  |5, 000, 000,  under  the  operations  of 
the  treaty  of  1846  was  not  only  a  violation  of  the  treaty  of  1835,  but 
was  also  an  infringement  of  the  rights  of  said  Cherokees  existing 
under  it,  as  re-guaranteed  by  the  10th  article  of  the  treaty  of  1846, 
which  does  not  in  any  manner  take  away  or  abridge  any  rights  or 
claims  which  the  Cherokees  (then)  residing  in  States  east  of  the 
Mississippi  river  had,  or  may  have,  under  the  treaty  of  1835,  and 
supplementary  thereto.  This  is  a  clear  afB.rraation  of  all  their  rights 
and  claims  under  the  treaty  of  1835-'36,  by  the  treaty  of  1846,  and 
your  petitioners  are  therefore,  under  a  strict  construction  of  the  treaty 
of  1835,  entitled  to  a  much  larger  sum  than  that  now  claimed  ;  but 
they  have  thought  it  best  under  the  circumstances  to  ask  only  for  their 
proportionate  share  of  the  balance  found  due  by  the  committee  and 
Congress  under  the  treaty  of  1835-'36,  after  deducting  all  proper 
charges  from  the  $5,600,000  over  and  above  the  $914,026  13  found 
due  under  the  treaty  of  1846,  with  an  addition  of  the  two  items  as 
already  stated. 

Your  petitioner,  at  the  2d  session  of  the  32d  Congress,  memorialized 
Congress  in  behalf  of  this  claim,  which  was  presented  in  the  House 
of  Representatives  and  referred  to  the  Committee  on  Indian  Affairs. 
Mr.  Caldwell,  of  North  Carolina,  prepared  a  report  in  favor  of  principal 
and  interest,  which  was  unanimously  adopted  by  the  committee,  but 
the  committee  not  being  called  for  reports  during  that  session,  it  was 
not  submitted  to  the  House. 

At  the  1st  session  of  the  33d  Congress  this  memorial  was  again 
presented  in  the  House  of  Representatives,  and  again  referred  to  the 
Committee  on  Indian  Affairs,  and  on  the  20th  of  March,  1854,  Mr„ 
Grow,  from  that  committee,  uiade  a  report  in  favor  of  the  principal, 
with  interest  from  December  14,  1852,  to  time  of  payment.  He  also 
offered  an  amendment  directing  its  payment  to  the  general  Indian 
appropriation  bill,  which  passed  the  Committee  of  the  Whole  by  a 
considerable  majority,  but  was  lost  in  the  House. 

This  memorial  was  afterwards  presented  in  the  Senate,  and  referred 
to  the  Committee  on  Indian  Affairs,  by  whom  the  report  of  Mr.  Grow 
was  adopted  ;  and  Mr.  Sebastin  artbrded  a  similar  amendment  to  that 
of  Mr.  Grow  to  the  general  Indian  appropriation  bill,  which  was 
passed  unanimously  by  the  Senate.  The  bill  was  then  returned  with 
this  amendment,  and  the  House  refused  to  concur.  The  Senate  insisted 
on  their  amendment  and  asked  for  a  committee  of  conference,  where  it 
was  finally  lost. 


J.    K.    ROGERS.  5 

It  is  proper  here  to  state,  that  on  the  5th  of  June,  1854^  Mr.  Houston, 
chairman  of  the  Committee  of  Waj's  and  Means,  addressed  a  letter  to 
the  Secretary  of  the  Interior,  asking  his  opinion  as  to  the  merits  of  the 
•claim.  The  letter  was  referred  to  the  Commissioner  of  Indian  Affairs 
for  a  report,  and  on  the  20th  of  the  same  month  the  Secretary  trans- 
mitted the  report  of  the  Commissioner,  in  wliich  he  declined  to  express 
an  opiDion_,  inasmuch  as  it  might  be  considered  discourteous  to  the 
Senate  and  the  Indian  committee  of  the  House,  who  had  already  passed 
judgment  on  the  claim. 

At  the  2d  session  of  the  same  Congress  a  supplemental  memorial 
was  presented  in  the  House  and  referred.  The  Committee  on  Indian 
Affairs,  under  a  joint  rule,  resumed  the  consideration  of  the  claim  as 
unfinished  business,  when  the  report  of  Mr.  Grow  was  again  adopted, 
and  he  instructed  to  present  it  to  the  House,  a  copy  of  which  is  here- 
with submitted.  The  memorials  referred  to  are  hereunto  annexed,  and 
prayed  to  be  made  part  of  this  petition. 

J.  K.  ROGERS, 
In  behalf  of  himself  and  the  Ckerokees  in  States  east. 


ss. 


County  of  Washington, 
District  of  Columbia, 

On  this  seventeenth  day  of  July,  eighteen  hundred  and  fifty-five, 
personally  appeared  before  me,  one  of  the  justices  of  the  peace  in  and 
for  the  county  aforesaid,  the  above  named  Johnson  K.  Rogers,  one  of 
the  claimants,  and  made  oath  upon  the  Holy  Evangely  of  Almighty 
God  that  the  facts  as  stated  in  the  above  petition  are  true,  to  the  best 
of  his  kiiowledge  and  belief. 

J.  D.  CLARK,  J.  P. 


Srief  of  authorities  and  ay^guments  relied  on  to  sustain  the  claim,  of  J. 
K.  Rogers  and  2,133  Gherokees,  referred  to  in  'petition,  &c. 

Articles  op  Treaty  of  1835. 

Article  1  gives  $5,000,000  for  the  lands  and  possessions  of  the 
Cherokee  nation  east  of  the  Mississippi,  and  again  submits  to  the 
Senate  the  question  of  an  allowance  for  spoliations. — (Stat,  at  Large, 
vol.  7,  p.  475.) 

Art.  12.  "■  Those  individuals  and  families  of  the  Cherokee  nation 
that  are  averse  to  a  removal  to  the  Cherokee  country  west  of  the 
Mississippi,  and  are  desirous  to  become  citizens  of  the  States  where 
they  reside,  and  such  as  are  qualified  to  take  care  of  themselves  and 
their  property,  shall  be  entitled  to  receive  their  due  portion  of  all  the 
personal  benefits  accruing  under  this  treaty  for  their  claims,  improve- 
ments, and  per  capita,  as  soon  as  an  appropriation  is  made  for  this 
treaty."— (Same  vol.,  p.  483.) 

Art.  15.  "■  It  is  expressly  understood  and  agreed  between  the 
parties  to  this  treaty,  that  after  deducting  the  amount  which  shall 
be  actually  expended  for  the  payment  for  improvements,  ferries,  claims 


b  J.    K.    EOGERS 

for  spoliations,  removal,  subsistence,  and  dehts,  and  claims  upon  the 
Cherokee  nation,  and  for  the  additional  quantity  of  lands  and  goods 
for  the  poorer  classes  of  Cherokees,  and  the  several  sums  to  be  invested 
for  the  general  national  funds,  provided  for  in  the  several  articles  of 
this  treaty,  the  balance,  whatever  the  same  may  be,  shall  be  equally 
divided  between  all  the  people  belonging  to  the  Cherokee  nation  east, 
according  to  the  census  just  completed." — (Same  vol.,  p.  4S5.) 

The  above  are  the  two  articles,  as  stated  in  the  petition,  on  which 
the  claim  is  principally  based,  and  I  have  italicised  the  words  claims 
for  spoliations,  and  removal,  as  marks  to  indicate  that  any  expendi- 
tuie  made  for  these  purposes  out  of  the  $5,000,000  was  without 
authority  of  law,  and  an  abridgment  of  the  rights  and  claims  of  the 
Cherokees  residing  in  States  east  of  the  Mississippi  under  the  treaty  ; 
in  proof  of  which  I  quote  2d  and  3d  articles  of  the  supplement : 

AiiT.   2.    "Whereas  the  Cherokee  people  have  supposed  that  the 

sum  of  $5,000,000,  fixed  by  the  Senate  in  their  resolution  of day 

of  March,  1835,  as  the  value  of  the  Cherokee  lands  and  possessions 
east  of  the  Mississippi  river,  was  not  intended  to  include  the  amount 
which  may  be  required  to  remove  them,  nor  the  value  of  certain  claims 
which  many  of  their  people  had  against  citizens  of  the  United  States, 
which  suggestion  has  been  confirmed  by  the  opinion  expressed  to  the 
War  Department  by  some  of  the  senators  who  voted  upon  the  ques- 
tion ;  and  whereas  the  President  is  willing  that  this  subject  should  be 
referred  to  the  Senate  for  their  consideration,  and  if  it  was  not  intended 
by  the  Senate  that  the  above  mentioned  sum  of  $5,000,000  should 
include  the  objects  herein  specified,  that  in  that  case  such  further 
provision  should  be  made  therefor  as  might  appear  to  the  Senate  to  be 
just. 

"  Akt  3.  It  is  therefore  agreed  that  the  sum  of  $600,000  shall  be, 
and  the  same  is  hereby,  allowed  to  the  Cherokee  people  to  include  the 
expense  of  their  removal,  and  all  claims  of  every  nature  and  descrip- 
tion against  the  government  of  the  United  States,  not  herein  other- 
wise expressly  provided  for,  and  to  be  in  lieu  of  the  said  reservations 
and  pre-emptions,  and  of  the  sum  of  $300,000  for  spoliations  described 
in  the  first  article  of  the  above  mentioned  treaty.  This  sum  of  $600,000 
shall  be  applied  and  distributed  agreeably  to  the  provisions  of  said 
treaty,  and  any  surplus  which  may  remain  after  removal  and  payment 
of  the  claims  so  ascertained,  shall  be  turned  over  and  belong  to  the 
education  fund." — (Stat,  at  Large,  vol.  7,  p.  488-9.) 

The  supplement  is  part  and  parcel  of  the  treaty,  and,  although 
removal  and  spoliations  are  enumerated  among  the  items  that  were  to 
be  deducted  by  the  15th  article  from  the  $5,000,000,  yet  it  is  clear 
they  were  abrogated  by  the  2d  and  3d  articles  of  the  supplement,  and 
constituted  a  charge  against  the  United  States  and  not  the  Cherokees ; 
whilst  it  is  equally  clear  that  reservations,  pre-emptions,  and  expenses 
of  Cherokee  committee,  not  enumerated  in  said  article,  constituted  no 
charge  against  said  fund.  With  regard  to  the  one  year's  subsistence, 
it  is  doubtful,  from  the  phraseology  of  the  8th  and  15th  articles, 
whether  this  exj)enditure  was  to  be  borne  by  the  United  States  or 
deducted  from  the  $5, 000; 000. — (See  article  8,  same  vol.,  p.  482.) 

It  would  seem,  however,  that  removal  and  subsistence  were  placed 


J.    K.    ROGERS.  7 

on  the  same  footing,  and  the  United  States  agree  and  stipulate  to  per- 
form the  duty — whether  in  the  capacity  of  agent  of  the  Cherokee  nation 
or  as  guardian  of  their  funds,  does  not  appear,  neither  is  it  material  to 
the  point.  The  question  at  issue  is,  who  was  to  foot  the  bill?  If  the 
Cherokees,  no  more  than  $33  33  a  head  for  subsistence  could  be  deducted 
from  their  fund;  if  the  United  States,  she  was  her  own  agent,  and  the 
Cherokees  had  no  authority  to  question  her  right  to  pay  more.  As  to 
the  exp  mse  ot  removal,  that  question  was  settled,  and  but  for  subsist- 
ence not  being  stricken  out  of  the  loth  article  by  the  3d  supplement, 
there  could  be  no  doubt  that  it  constituted  a  charge  against  the  United 
States.  Indeed,  the  question  was  of  such  doubtful  import,  that  the 
House  of  Representatives  adopted  a  resolution  inquiring  of  the  Sec- 
retary of  War  how  much  would  be  required,  and  on  the  25th  of  May, 
1838,  Mr.  Poinsett  replies  to  this  resolution  by  letter,  in  which  he 
submitted  to  the  House  estimates ;  conseijuently,  Congress  made  an 
appropriation  for  subsistence  and  all  other  objects  specified  in  the  3d 
supplement,  in  the  following  language  : 

"  That  the  sum  of  $1,047,067  be  appropriated,  out  of  any  money 
in  the  treasury  not  otherwise  appropriated,  in  full  for  all  objects 
specified  in  the  3d  article  of  the  treaty  of  1835  between  the  United 
States  and  the  Cherokees  ;  and  for  the  further  object  of  aiding  in  the 
subsistence  of  the  Indians  for  one  year  after  their  removal  west : 
Provided,  That  no  part  of  the  said  sum  of  money  shall  be  deducted 
from  the  |5, 000, 000  stipulated  to  be  paid  to  said  tribe  of  Indians  by 
said  treaty." — (Statutes  at  Large,  vol.  5,  p.  242.) 

The  causes  which  led  to  the  passage  of  the  above  act  are  fully  set 
forth  in  the  report  of  the  Senate  Committee  on  Indian  Affairs  of 
August  8,  1850.  Speaking  of  the  objects  of  the  act,  the  committee 
say  :  "  Here  was  a  clear  legislative  affirmation  of  the  terms  offered 
by  the  Indians  and  acceded  to  by  the  Secretary  of  War.  It  was  a 
new  contract  with  the  Ross  party,  outside  of  the  treaty,  or  rather  a 
new  consideration  offered  to  abide  by  its  terms.  The  Secretary  of 
War  agrees  to  consider  the  expenses  of  removal  and  suhbistence  as  in- 
tended by  the  treaty  of  1835  to  be  borne  by  the  United  States,  and 
Congress  affirm  his  act  by  providing  that  no  part  of  the  $1,047,067 
should  be  taken  from  the  treaty  fund.  It  was  made  auxiliary  to  the 
$600,000  provided  for  in  the  third  supplemental  article — a  fund  pro- 
vided for  removal  and  other  expenditures  independent  of  the  treaty,  and 
in  full  tor  all  these  objects." — (G-row's  report,  pages  7,  8,  9  and  10.) 

Admitting  that  subsistence  was  intended  to  be  borne  by  the  Chero- 
kees, and  estimating  the  v/hole  number  at  18,335,  the  precise  number 
according  to  the  census  taken  by  the  United  Slates  in  1835,  and 
allowing  the  amount  stipulated  to  be  paid  by  the  8th  article,  namely, 
$33  33  a  head,  it  would  not  only  amount  to  $611,105  55,  which  sum 
was  deducted  by  the  committee  from  the  $5,600,000,  in  their  settle- 
ment with  the  "old  settlers"  in  1850,  (pages  5  and  6  of  Grow's  re- 
port,) and  the  Cherokees  in  States  east  have  made  no  claim  to  any  part 
of  it  in  their  petition.  Without,  therefore,  taking  subsistence  into  ac- 
count, and  considering  it  as  a  charge  on  the  $5,000,000  fund,  it  would 
then  leave  an  expenditure,  according  to  the  report  of  the  Second 
Comptroller  and  Second  Auditor,  for  spoliations  and  removal  alone  of 


8  J.   K.   EOGEES. 

|2, 952, 196  26.  The  amount  provided  by  tlie  United  States  appli- 
cable to  the  liquidation  and  payment  of  this  expenditure  was  $600,000, 
named  in  the  3d  supplement,  and  11,047,067  appropriated  by  the  act 
of  June  12,  1838^  making  in  the  aggregate  $1,647,067,  which,  being 
deducted  from  $2,952,196  26,  leaves  a  balance  expended  and  unpro- 
vided for  by  any  appropriation  of  $1,305,129  26,  but  which  was  liqui- 
dated and  paid  by  the  tJnited  States  as  trustee  out  of  the  $5,000,000 
fund,  in  violation  of  the  proviso  of  the  act  of  1838  and  2d  and  3d 
articles  of  the  supplemental  treaty  of  1836.  Credit,  therefore,  this 
balance  with  $611,105  55  for  one  year's  subsistence,  and  it  would 
leave  a  remainder  of  $694,024  71.  To  this  add  the  expense  of  Chero- 
kee  committee  named  in  the  12th  article  of  the  treaty  of  1835,  and 
sum  over-charged  for  spoliations,  and  it  would  leave  a  balance  con- 
siderably larger  than  that  claimed  in  the  petition.  Take  either  this 
statement  or  the  one  made  by  the  Committee  on  Indian  Affairs  of  the 
Senate,  and  there  is  no  escape  from  the  conclusion  that  there  is  a 
larger  balance  yet  due  the  Cherokees  residing  in  States  east  under  the 
treaty  of  1835-36. 

It  is  now  necessary  to  examine  the  treaty  of  1846,  with  a  view  of 
ascertaining  how  far  those  rights  and  claims  were  abridged  by  and 
under  its  provisions. 

Art.  10.  "It  is  expressly  agreed  that  nothing  in  the  foregoing 
treaty  contained  shall  be  so  construed  as  in  any  manner  to  take  away 
or  abridge  any  rights  or  claims  which  the  Cherokees  now  residing  in 
States  east  of  the  Mississippi  river  had,  or  may  have  under  the  treaty 
of  1835  and  the  supplement  thereto." — (Statutes  at  Large,  vol.  9,  p. 
875.) 

Could  language  be  more  explicit  ?  The  article  speaks  for  itself,  and 
comment  vv^ould  only  serve  to  mistify  and  complicate  its  meaning. 

Aet.  4,  same  vol.,  page  872~'3,  establishes  the  mode  and  man- 
ner of  settlement  with  the  "  old  settlers  "  or  "  western  Cherokees  ;" 
and  article  12^  same  vol.,  p.  876,  at  the  instance  of  the  delegation  of 
the  "old  settlers,"  proposes  "that  the  question  shall  be  submitted 
with  this  treaty  to  the  decision  of  the  Senate  of  the  United  States,  of 
what  portion,  if  any,  of  the  expenditures  made  for  removal,  subsistence, 
and  spoliations,  under  the  treaty  of  1835,  is  properly  and  legally 
chargeable  to  the  $5,000,000  fund." 

The  amount  found  due  the  "  old  settlers"  by  Congress  is  minutely 
and  specifically  stated  in  Senator  Sebastian's  report. — (Grow's  report, 
pages  5  and  6.)  My  views  on  the  subject  are  expressed  at  length  in 
supplemental  memorial,  pages  3  and  4,  under  head  of  article  4,  treaty 
of  1846. 

The  mode  and  manner  of  settlement  with  the  Cherokees  emigrating 
under  the  treaty  of  1835,  is  specified  in  the  following  articles  of  the 
treaty  of  1846. 

Article  3  provides  that  certain  claims  therein  enumerated  and  paid 
out  of  the  $5,000,000  fund,  shall  be  reimbursed  by  the  United  States. 
— (Statutes  at  Large,  vol.  9,  p.  872.) 

Article  9  provides  that  "a  fair  and  just  settlement  of  all  moneys  due 
the  Cherokees,  and  subject  to  per  capita  division  under  the  treaty  of 
1835,  which  said  settlement  shall  exhibit  all  money  properly  expended 


J    K.    KOGEES.  9 

under  said  treaty/'  (as  altered  and  amended  by  tliis  article,)  in  the 
following  words:  '"'The  aggregate  of  which  said  several  sums  shall  be 
deducted  from  the  sum  of  $6,647,067,  and  the  balance  thus  found  to 
be  due  shall  be  paid  over  per  capita,  in  equal  amounts,  to  all  those 
individuals,  heads  of  families,  or  their  legal  representatives,  entitled 
to  receive  the  same  under  the  treaty  of  1835  and  supplement  of  1836, 
being  all  those  Cherokees  residing  east  at  the  date  of  said  treaty  and 
supplement  thereto." — (Same  vol.,  p.  875.) 

The  alterations  and  amendments  made  in  the  treaty  of  1 835-' 36  by 
this  article,  as  above  indicated,  consists  in  this  :  The  gross  sum  of 
$5,600,000  provided  by  the  treaty  of  1835-'36  is  changed  and  enlarged 
by  the  ninth  article  of  the  treaty  of  1846  to  $6,647,067,  and  removal, 
spoliations,  subsistence,  and  other  improper  expenditures  in  unlimited 
amounts  are  to  be  deducted  therefrom;  whereas,  by  the  treaty  of  1835 
and  supplement  of  1836,  removal  and  spoliations  were  not  deductable 
from  the  $5,000,000  fund,  and  subsistence,  if  deductable  at  all,  to  a 
limited  extent  only. — (See  Sebastian's  report,  pages  5  and  6  of  Grow's 
report,  and  also  report  of  Second  Comptroller  and  Second  Auditor, 
pages  11  and  12,  G-row's  report.) 

In  my  memorial  to  Congress  of  January  12,  1853,  pages  2,  3,  4,  and 
5,  I  have  endeavored  to  show  how  and  in  what  j)articulars  the  treaty 
of  1835  and  supplement  of  1836  was  altered  and  amended  by  the  treaty 
of  1846,  also  supplemental  memorial,  pages  5,  6,  7,  and  8. 

I  omitted  to  state  one  fact  in  my  petition  which  I  now  take  the 
liberty  of  doing  here;  it  is  this:  During  the  term  of  the  2d  session  of 
the  33d  Congress,  whilst  my  claim  was  before  the  Committee  on  Indian 
Affairs,  and  not  in  the  possession  of  the  House,  the  chairman  of  the 
Committee  of  Ways  and  Means  thought  proper  to  ask  the  Commissioner 
of  Indian  Affairs  (whether  verbally  or  in  writing  does  not  appear)  for 
his  opinion  as  to  its  merits.  As  to  the  action  of  Congress  on  this  claim, 
I  refer  to  the  Journals  of  the  Senate  and  House,  pages  — , 

On  the  11th  of  January,  1855,  the  Commissioner  says  :  I  have 
examined,  in  compliance  with  your  request,  the  claim  of  "J.  K. 
Kogers,  for  himself  and  the  Cherokees  in  States  east  of  the  Mississippi 
river,"  for  additional  per  capita  claimed  to  be  due  them  by  express 
provisions  of  the  treaty  of  1835-'36  and  1846.  "  My  opinion  is  that 
there  is  no  good  foundation  for  the  claim,  if  the  treaty  of  1846  with 
the  Cherokees,  and  the  appropriation  made  by  Congress,  approved 
27th  February,  1851,  are  to  be  regarded  as  an  exposition  of  the  inten- 
tion of  the  parties  in  interest." 

This  is  a  singular  mode  of  expressing  an  opinion  ;  in  other  words, 
it  is  what  is  generally  termed  "  begging  the  question,"  and  but  for 
the  word  "■z/,"  one  would  be  at  a  loss  to  comprehend  its  meaning  and 
intention.  What  is  it?  Why,  says  the  Commissioner,  if  the  treaty 
of  1846  and  the  act  of  1851  "  are  to  be  regarded  as  an  exposition  of 
the  intentions  of  the  parties  in  interest,  there  is  no  good  foundation 
for  the  claim."  And  visa  versa:  ''If"  the  treaty  and  act  of  Congress 
were  not  "regarded  as  an  exposition  of  the  intentions  of  the  parties  in 
interest,"  would  it  not  be  a  concession  that  there  was  a  good  founda- 
tion for  the  claim  ?  Such  would  be  the  only  reasonable  inference  to 
be  derived  from  this  official  rule  of  logic.     In  construing  this  opinion. 


10  '  J.   K.   ROGERS. 

much,  if  not  everything,  depends  on  the  use  made  of  the  word  "if." 
''II"  it  is  admitted  that  the  premises  assumed  b}^  the  Commissioner 
is  correct^  it  necessarily  follows  his  conclusions  arc  equally  so.  I  am 
not  prepared  to  make  such  concessions  or  admissions.  No  statement 
made  in  the  memorials  of  the  parties  warrants  such  construction.  On 
the  contrary,  they  state  that  the  claim  is  "due  to  them  by  express 
provisions  of  the  treaties  of  1835-'36  and  1846,"  and  the  Commis- 
sioner so  states  the  case,  but  failed  to  give  the  quotation  marks  ;  and 
then  goes  on  to  give  his  opinion  with  his  if's,  as  though  "  the  parties 
in  interest"  had  admitted  that  the  treaty  of  1846  and  act  of  1851  was 
"an  exposition  of  their  intention."  What  right  or  authority  had  he 
to  draw  such  inferences?  Certainly  not  from  the  memorials,  either  of 
the  treaties,  or  act  of  1851.     Again,  he  says  in  the  next  paragraph  : 

"  This  claim  is  predicated  on  the  mode  of  settlement  indicated  by 
the  Second  Comptroller  and  Second  Auditor,  under  the  joint  resolution 
of  the  Senate  and  House  of  Representatives  of  the  United  States  of  the 
Yth  August,  1848,  and  a  report  of  the  Committee  on  Indian  Affairs  of 
the  Senate  of  the  United  States  of  August  8,  1850." 

This  is  not  the  fact ;  the  claim  is  not  now  nor  never  was  predicated 
on  either  of  the  reports  indicated  by  the  Commissioner.  It  was,  and 
now  is,  predicated  on  the  12th  and  15th  articles  of  the  treaty  of  1835 
and  2d  and  3d  articles  of  the  supplement  and  guarantee  of  the  10th 
article  of  the  treaty  of  1846 ;  and  the  reports  of  the  accounting  officers 
of  the  treasury  and  Committee  on  Indian  Affairs  of  the  Senate  were 
referred  to  and  quoted  in  the  memorials  as  evidence  to  prove  that  the 
Cherokees  in  States  east  were  entitled  to  a  larger  sum  than  that  found 
due  by  the  settlement  of  1851,  under  the  9tli  article  of  the  treaty  of 
1846  ;  and  I  confess  I  have  not  as  yet  seen  anything  in  the  opinion  of 
the  Commissioner  to  prove  the  contrary.  I  shall  only  notice  one  or 
two  other  positions  assumed  in  the  opinion.  At  page  2,  paragraphs 
2  and  3 : 

"The  memorialists  contend  that  the  9th  article  of  the  treaty  of 
1846,  providing  for  a  just  settlement  of  all  moneys  due  the  Cherokees, 
and  subject  to  the  per  capita  division  under  the  treaty  of  1835-'36, 
does  not  apply  to  them,  on  the  ground  that  that  article  refers  to  the 
Cherokee  people  west  only." 

The  memorialists  contend  for  no  such  thing.  What  they  have  and 
do  contend  for  is  this  :  That  said  9th  article  changed  and  altered  very 
materially  the  15th  article  of  the  treaty  of  1835  and  supplement  thereto, 
and  that  a  much  smaller  amount  was  iound  due  under  it  than  that 
which  was  properly  and  legitimately  due  under  the  articles  of  the 
treaty  of  1835-'36.  They  also  contended,  on  a  former  occasion,  for 
their  proportionate  share  ^er  capita  of  the  amount  that  was  found  due 
by  the  settlement  of  1851,  according  to  the  principles  of  said  9th  arti- 
cle, and  what  is  more,  they  got  it,  through  the  "proviso  of  the  act  of 
1851,  and  the  interposition  of  the  opinion  of  the  Attorney  General  of 
the  United  States,  which  forever  put  to  rest  the  question  so  ^^ seriously 
mooted"  at  the  time  by  the  Indian  Office  and  Ross  delegation,  and 
referred  to  in  paragraph  4,  page  2,  of  the  Commissioner's  opinion. 
Of  this  fact  no  one  is  or  should  be  better  acquainted  than  the  Com- 
missioner of  Indian  Affairs,  and  yet,  in  the  3d  paragraph,  it  would 


J.    K.    ROGERS.  11 

seem  that  he  ''cannot  comprehend  the  propriety  of  the  objection,  when 
it  appears  that  the  Cherokees,  so  called,  residing  in  States  east  of  the 
Mississippi  received  their  per  capita  distribution  arising  under  the 
treaty  of  1846,  and  the  conditions  imposed  by  the  act  of  appropriation 
approved  27th  February^  1851,  as  in  full  of  all  claims  under  the  treaty 
of  1835-'36,  and  the  supplemental  treaty  of  1846,  without  protesting 
at  the  time  of  the  receipt  of  the  money  that  it  was  not  in  full,  as  indi- 
cated in  the  receipt." 

Did  not  the  Commissioner  know  at  the  writing  of  his  opinion^  and 
noiD,  that  the  treaty  of  1846  was  made  exclusively  with  the  different 
factions  of  the  Cherokee  nation  west,  and  that  it  never  had  any  bind- 
ing force  or  controlling  power  over  the  Cherokees  (then)  residing  in 
States  east,  who  were  not  parties  to  it  ?  They  were  not  constituents 
of  the  treaty-making  power  of  the  Cherokee  nation,  and  required  no 
new  treaty.  Their  rights  and  claims  were  already  secure  under  the 
treaty  of  1835-'36,  and  they  only  insisted  that  they  should  not  be 
curtailed  or  disturbed  by  the  treaty  of  1846,  hence  the  insertion  of  the 
10th  article  of  that  treaty. 

The  Commissioner  places  great  stress  and  importance  on  the  act  of 
1851,  and  "receipts  executed  by  the  Cherokee  Indians  resident  in 
States  east  of  the  Mississippi."  What  is  tbi  act  of  1851,  and  what 
are  its  requirements  ?     I  quote  it : 

"For  payment  to  the  Cherokee  nation  the  sum  of  seven  hundred 
and  twenty-four  thousand  six  hundred  and  three  dollars  and  thirty- 
seven  cents,  and  interest  on  the  above  sum  at  the  rate  of  ^\e  per 
centum  per  annum,  from  the  12th  day  of  June,  1838,  until  paid,  shall 
be  paid  to  them  out  of  any  money  in  the  treasury  not  otherwise  ap- 
propriated, but  no  interest  shall  be  paid  after  the  first  of  April,  1851, 
if  any  portion  of  the  money  is  then  left  undrawn  by  the  said  Chero- 
kees :  Provided,  Iwioever,  That  the  sum  now  appropriated  shall  be 
in  full  satisfaction  and  final  settlement  of  all  claims  and  demands 
whatever  of  the  Cherokee  nation  against  the  United  States,  under  any 
treaty  heretofore  made  with  the  Cherokees.  And  the  said  Cherokee 
nation  shall,  on  the  payment  of  said  sura  of  money,  execute  and  de- 
liver to  the  United  States  a  full  and  final  discharge  for  all  claims  and 
demands  whatever  on  the  United  States,  except  for  such  annuities  in 
money  or  specific  articles  of  property  as  the  United  States  may  be 
bound  by  any  treaty  to  pay  to  said  Cherokee  nation,  and  except,  also, 
such  moneys  and  lands,  if  any,  as  the  United  States  may  hold  in  trust 
for  said  Cherokees :  And  jjrovided,  further,  That  the  money  appro- 
priated in  this  item  shall  be  paid  in  strict  conformity  with  the  treaty 
with  said  Indians  of  6th  August,  1846." — (Statutes  at  Large,  vol.  9, 
pp.  572-'3.) 

It  must,  therefore,  be  perceived  that  the  requirements  of  the  act  are 
simply  these :  1st.  The  money  shall  be  paid  to  the  Cherokee  nation. 
2d.  The  Cherokee  nation  shall,  on  the  payment  of  said  sum  of  money, 
execute  and  deliver  to  the  United  States  a  full  and  final  discharge  for 
all  claims  and  demands  whatsoever  on  the  United  States,  except,  &c. 
If  the  act  had  stopped  here,  then  a  receipt  in  full  from  the  Cherokee 
nat{o7t  for  any  further  demands  against  the  United  States  might  have 
been  successfully  urged  by  the  Commissioner  against  said  nation  ;  but 


12  •  J.    K     ROGERS. 

the  proviso  to  the  act  was  not  only  fatal  to'  the  Cherokee  nation 
receiving  and  receipting  ior  the  money,  but  is  equally  so  to  the  re- 
ceipts of  the  Cherokees  residing  in  States  east,  produced  by  the  Com- 
missioner against  any  further  demands  they  may  have  against  the 
United  States. 

Before  the  act  was  consummated  in  Congress  it  was  discovered  that 
the  money  jii'oposed  to  be  appropriated  by  it,  by  express  terms  of  the 
treaties  of  1835-'36  and  of  1846,  did  not  belong  to  the  Cherokee  na- 
tion, and  the  act  without  the  proviso  would  be  a  violation  of  said 
treaties.  In  consequence  of  this  "  the  Cherokee  Indians  resident  in 
States  east  of  the  Mississippi"  did  not  hesitate  to  give  their  '' receipts 
in  full  of"  their  "  proportionate  shares  of  the  money  appropriated  tor 
the  benefit  of  the  Cherokees  by  the  acts  of  Congress  of  1850  and  1851," 
knowing,  as  they  did  at  the  signing  of  the  receipts,  the  effect  of  the 
proviso.  The  rule  of  construction  is,  "  where  the  proviso  of  a  statute 
is  directly  repugnant  to  the  purview,  the  proviso  shall  stand  and  be  a 
repeal  of  the  purview,  as  it  speaks  the  last  intention  of  the  makers." — 
(Opinions  of  Attorneys  G-eneral,  vol.  5,  pp.  330,  331  ;  also,  same  vol., 
p.  383.)  The  act  of  1850,  referred  to  in  the  opinion  of  the  Commis- 
sioner, makes  an  appropriation  for  the  exclusive  benefit  of  the  "old 
settlers,"  and  I  cannot  t-ee  the  propriety  of  its  induction  in  connexion 
with  the  receipts  of  Cherokees  in  States  east. 

With  regard  to  the  objections  urged  against  the  claim  in  the  House 
of  Representatives,  they  will  be  found  with  the  answers  and  authori- 
ties referred  to,  and  quoted  in  supplemental  memorial,  pages  1,  2, 
and  3. 

After  all,  it  seems  to  me  the  whole  question  of  the  right  of  Cherokees 
residing  in  States  east  to  additional  j9er  capita  resolves  itself  into  this: 
1.  Were  "all  extravagant  and  improper  expenditures"  excluded  by 
the  Senate  in  their  settlement  with  the  "  old  settler  "  Cherokees  in 
1850,  and  were  all  the  "  investments  and  expenditures  chargeable 
upon  the  $5,600,000,  and  particularly  enumerated  in  the  fifteenth 
article  of  the  treaty  of  1835,  "properly"  and  "legally"  deducted  from 
said  aggregate  sum,  by  which  it  was  ascertained  that  $1,571,346  55 
would  be  "  left  for  per  capita  distribution  among  the  Cherokees  emi- 
grating under  the  treaty  of  1835,"  or  rather  the  Cherokees  included 
in  the  census  of  1835  ?  And  2,  Did  the  fourth  article  of  the  treaty  of 
1846  require  the  United  States  to  do  more,  or  less,  for  the  "  old  settler 
Cherokees"  in  making  said  charges  to,  and  deductions  from  the 
$5,600,000,  than  was  absolutely  required  to  be  done  for  the  eastern 
Cherokees  by  the  fifteenth  article  of  the  treaty  of  1835-'36,  with  the 
two  exceptions  stated  elsewhere  ?  If  yea,  then  the  question  is  settled, 
by  the  tenth  article  of  the  treaty  of  1846 — the  settlement  of  1851, 
made  in  pursuance  of  the  ninth  article  of  said  treaty,  to  the  contrary 
notwithstanding. 

One  other  question  remains  to  be  considered,  and  that  is  the  ques- 
tion of  interest. 

The  Committee  on  Indian  Affairs  of  the  House  of  Representatives 
reported  in  favor  of  interest  from  December  14,  1852,  to  time  of  pay- 
ment, upon  the  supposition,  as  I  was  informed,  that  the  claimants  had 
not  asked  for  the  principal  previous  to  that  date.- — (G-row's  report, 


J.    K,    ROGERS.  13 

page  2.)  This  was  an  error.  If  the  mere  asking  for  the  principal 
was  all  that  was  requisite  to  confer  a  right  to  interest^  it  will  be  found 
that  a  demand  was  made  for  the  principal  at  a  much  earlier  period. 
As  long  ago  as  July  or  August,  1838,  the  Cherokee  committee  pro- 
tested against  the  Scott  and  Ross  contract  for  the  removal  of  the 
Cherokees  on  several  grounds  ;  one  of  which  was  that  it  would  di- 
minish the  ^6?'  capita  then  more  than  due  to  all  the  Cherokees  included 
in  the  census  of  1835.  Other  applications  were  made  at  various 
times. — (Harris'  report,  House  Doc.  No.  1098,  vol.  5  ;  also  Cooper's 
report,  27th  Congress,  3d  session.  House  Doc.  No.  288.) 

The  claimants,  hov/ever,  base  their  right  to  interest  on  what  they 
conceive  to  be  higher  and  better  ground,  viz.,  the  twelfth  article  of 
the  treaty  of  1835.  Speaking  of  the  binding  obligations  of  treaties, 
the  Committee  on  Indian  Affairs  of  the  Senate  say  :  "■  It  has  been  the 
uniform  practice  of  this  government  to  pay  and  demand  interest  in  all 
transactions  with  foreign  governments,  which  the  Indian  tribes  have 
always  been  said  to  be,  both  by  the  Supreme  Court  and  all  other 
branches  of  our  government,  in  all  matters  of  treaty  or  contract." — 
(G-row's  report,  page  10,  paragraph  2.)  "  In  the  case  of  Wocester  vs. 
the  State  of  Georgia,"  the  Supreme  Court  says  :  ''  The  words  'treaty' 
and  'nation'  are  words  of  our  own  language,  selected  in  our  diplomatic 
and  legislative  proceedings,  by  ourselves,  having  each  a  definite  and 
well  understood  meaning.  We  have  applied  them  to  Indians,  as  we 
have  applied  them  to  other  nations  of  the  earth.  They  are  applicable 
to  all  in  the  same  sense." 

I  have  said  all  that  I  have  to  say  on  the  subject  of  interest  in  sup- 
plemental memorial,  pages  8  and  9. 

J.  K.  ROGERS. 

Washistgton,  July  30,  1855. 


m  TEE  COUET  OF  CLiilMS.— No.   133. 

On  the  Petition  of  J.  K.  Rogers  and  other  Cherokees. 
Brief  of  the  United  States  Solicitor. 

This  is  a  claim  for  |92,625  19,  with  interest  at  five  per  cent,  from 
the  12th  June,  1838,  till  paid,  making  now  upwards  of  $170,000. 

By  the  first  article  of  the  treaty  of  1835  with  the  Cherokees,  it  was 
agreed  by  the  United  States  to  pay  them  |5, 000^000  for  their  lands, 
&c. 

The  12th  article  recognized  the  Cherokees  who  did  not  remove  west 
with  the  nation,  but  became  citizens  of  the  eastern  States,  as  entitled 
to  their  due  portion  of  all  the  benefits  of  the  treaty  ;  and,  among  other 
things,  to  participate  in  the  per  capita  distribution  contemplated  by 
the  15th  article. 

The  removal  effected  by  the  treaties  of  1835  and  1836,  and  the  act 
of  June  12,  1838,  led  to  diflSculties  between  the  new  emigrants  and 
that  portion  of  the  Cherokee  nation  which  had  been  settled  in  the  west 
prior  to  1835.  These  difficulties,  Avith  disputes  between  the  govern- 
ment and  the  Cherokees  as  to  what  was  chargeable  to  the  five  millions 


14  J.    K.   EOGEES- 

fund  and  what  should  he  paid  hy  the  United  States,  led  to  the  treatj 
of  1846,  in  which  provision  is  made  for  quieting  all  disputes  among 
themselves  and  with  the  government.  In  pursuance  of  these  pro- 
visions, an  account  was  taken  by  the  Auditor  and  Comptroller,  which 
was  adopted,  with  some  modifications,  and  appropriations  were  made 
to  carry  it  into  effect,  the  last  of  which  is  in  these  words  : 

"  In  payment  to  the  Cherokee  nation,  the  sum  of  seven  hundred 
and  twenty-four  thousand  six  hundred  and  three  dollars  and  thirty- 
seven  cents,  and  interest  on  the  above  sum  at  the  rate  of  five  per 
centum  per  annum  from  12th  June,  1838,  until  paid,  shall  be  paid  to 
them  out  of  any  money  in  the  treasury  not  otherwise  appropriated  ; 
but  no  interest  shall  be  paid  after  the  1st  April,  1851,  if  any  portion 
of  the  money  is  then  left  undrawn  by  the  said  Cherokees :  Provided, 
hoioever,  That  the  sum  now  appropriated  shall  be  in  full  satisfaction 
and  a  final  settlement  of  all  claims  and  demands  whatsoever  of  the 
Cherokee  nation  against  the  United  States^,  under  any  treaty  heretofore 
made  with  the  Cherokees.  And  the  said  Cherokee  nation  shall,  on 
payment  of  said  sum  of  money,  execute  and  deliver  to  the  United 
States  a  full  and  final  discharge  for  all  claims  and  demands  what- 
soever on  the  United  States,  except  for  such  annuities  in  money  or 
specific  articles  of  property  as  the  United  Si-ates  may  be  bound  by  any 
treaty  to  pay  to  said  Cherokee  nation  ;  and  except,  also,  such  moneys 
and  lands,  if  any,  as  the  United  States  may  hold  in  trust  for  said  Chero- 
kees ;  And  provided,  further-,  That  the  said  money  appropriated  in 
this  item  shall  be  paid  in  strict  conformity  with  the  treaty  with  said 
Indians  of  6th  August,  1846." 

See  act  of  27th  February,  1851. 

These  claimants  received  their  due  proportion  of  this  appropriation, 
and  executed  a  receipt  in  full,  according  to  the  requirements  of  the 
act. 

But  it  is  argued,  by  the  petitioners,  that  they  are  not  estopped  from 
going  behind  this  settlement  to  dispute  the  basis  on  which  it  was 
made  :  1.  Because,  by  the  10th  article  of  the  treaty  of  1846,  "  it  is 
expressly  agreed,  that  nothing  in  the  foregoing  treaty  contained  shall 
be  so  construed  as  in  any  manner  to  take  away  or  abridge  any  rights 
or  claims  which  the  Cherokees,  now  residing  in  States  east  of  the  Mis- 
sissippi river,  had  or  may  have  under  the  treaty  of  1835  and  the  sup- 
plement thereto,"  2.  Because  the  act  in  question  only  provides  for 
receipts  of  this  character  by  the  Cherokee  nation,  and  does  not  require 
them  from  the  individuals  who  have  become  citizens  of  the  States. 
3.  That  the  proviso  is  repugnant  to  the  purview  of  the  statute,  &c. 
(See  pp.  8,  9  of  the  petitioner's  brief.) 

1.  Has  the  treaty  of  1846  ^' taken  away  or  abridged  any  right" 
which  the  Cherokees,  citizens  of  States,  had  under  the  treaty  of  1835 
and  the  supplement  thereto.  It  is  contended  that  the  balance  ascer- 
tained by  the  accounting  officers,  under  the  resolution  of  7th  August, 
1848,  was  a  balance  ascertained  professedly  "  in  accordance  with  the 
principles  of  the  treaty  of  1846,  and  not  in  accordance  with  the  treaty 
of  1835-'36  ;"  that  the  principles  thus  adopted  in  the  settlement  did 
operate  to  take  away  and  abridge  the  rights  in  question.  The  first 
modification  of  the  treaty  of  1835-'36,  effected  by  that  of  1846,  cited  in 
support  of  this  allegation,  is,  that  whereas  by  the  said  treaty  of  1835-'36, 


J    K    ROGERS.  ^O 

tlie  aggregate  sum  from  which  deductions  were  to  be  made,  according 
to  the  ISth  article  of  said  treaty,  was  the  sum  of  five  millions  six  hun- 
dred thousand  dollars  ;  by  the  treaty  of  1846,  the  aggregate  sum  from 
which  the  deductions  specified  in  the  9th  article  were  made,  was 
$6,647^007.  The  aggregate  sum  being  greater  by  the  last  than  by 
the  first  treaty,  would  authorize  the  contrary  inference  from  that  drawn 
by  the  claimants. 

The  second  allegation  is,  that  the  deductioas  from  the  aggregate 
sum  authorized  by  the  treaty  of  1846  were  greater  than  those  author- 
ized by  the  treaty  of  1835  ;  and  it  is  said  that  the  treaty  of  1846  admits 
of  deductions  from  said  aggregate  sum  for  spoliations  and  subsistence, 
in  unlimited  sums,  and  removal  may  be  charged  variously,  at  the  rate 
of  $20,  $30,  $40,  $65,  $95,  and  $103  25  per  head;  whereas  by  the 
treaty  of  ]835-'36,  "removal,  andoneyear's  subsistence  after  removal, 
is  limited  at  $53  33  per  head." — (See  8th  article,  treaty  1835-'36.) 
"  So, is  the  sum  limited  out  of  which  spoliations  are  to  be  paid."  This 
is  claimed  to  result  from  the  3d  supplemental  article. 

These  allegations  would  involve  the  necessity  of  comparing  the  lan- 
guage of  the  treaties,  did  not  the  petitioner  admit  on  the  same  page 
in  which  he  makes  them,  (see  page  5  of  his  argument  12th  January, 
1853,)  that,  "  on  turning  to  the  fifteenth  article,  id  e  find  removal,  subsist- 
ence, and  claims  for  spoliaticns  embraced  in  the  enumerated  items  to  be 
deducted  from  the  five  millions  ;"  and  though  he  insists  that  the  third 
article  of  the  supplement  so  modifies  the  fifteen'h,  that  neither 
removal  or  spoliation  can  be  legitimately  charged  to  the  five  millions 
fund,  it  is  ])erfectly  plain,  on  reference  to  said  supplemental  article, 
that  it  merely  created  an  addition  to  the  fund  without  in  the  least 
aflecting  the  enumeration  of  the  fifteenth  article. 

It  will  be  found  that,  so  far  from  its  being  true  that  the  treaty  of 
1846  took  away  or  abridged  any  right  under  the  treaty  of  1835,  it 
greatly  enlarged  and  extended  these  rights. 

By  reference  to  the  third  article  of  the  treaty  of  1846,  it  will  be 
perceived  that  the  United  States  abandons  many  charges  which  the 
accounting  officers  had  supposed  legitimately  chargeable  against  the 
fund.  Mr.  Sebastian's  report,  confirmed  by  the  Senate,  abandons 
another  large  sum  which  he  admits  was  clearly  chargeable  to  that 
fund  under  the  treaty  ;  and  hence,  when  the  settlement  is  spoken  of 
as  being  made  in  pursuance  of  the  principles  of  the  treaty  of  1846,  it 
is  meant  only  that  the  concessions  made  in  the  treaty  of  1846  are 
carried  out  in  the  settlement. 

On  first  taking  up  this  case  for  investigation  I  was  much  confused 
by  the  mingling  of  discussions  in  respect  to  the  basis  of  settlement 
with  the  "  old  settlers,"  with  that  adopted  for  the  eastern  Cherokees. 
The  same  thing,  I  am  satisfied,  has  happened  to  those  who  investi- 
gated the  subject  as  members  of  the  committees  of  the  House  and 
Senate.  But,  in  point  of  fact,  the  basis  on  which  the  settlement  was 
made  with  the  old  settlers,  established  by  the  fourth  article  of  the 
treaty  of  1846,  has  no  connexion  with,  and  affords  no  light  whatever 
upon  the  present  claim.  The  considerations  upon  which  the  old  set- 
tlers were  allowed  the  half  million  voted  to  them  in  1850  are  set 
forth  in  Mr.  Sebastian's  report  of  that  year.  The  amount  was  arrived 
at  by  a  process  indicated  in  the  fourth  article  of  the  treaty  of  1846 


16  J    K.   ROGERS. 

The  settlement  witli  the  eastern  Cherokees  was  arrived  at  by  another 
process — that  stated  in  articles  three  and  nine  of  said  treaty.  Great 
concessions  were  made  in  these  last  articles  to  the  eastern  Cherokees, 
and  greater  still  in  the  other  article  to  the  old  settlers.  The  petitioners 
seem  to  think  that  they  have  the  right  to  claim  according  to  rule 
which  concedes  the  most,  although  no  part  of  the  reasons  which 
induced  the  United  States  to  make  the  additional  concessions  to  the 
old  settlers  is  applicable  to  the  petitioners.  It  is  on  the  basis  of  the 
settlement  with  the  old  settlers  that  the  committee  of  the  House 
reported  favorably  on  this  claim.  The  action  of  the  Senate  (see 
Cong.  Globe,  vol.  28,  part  2,  p.  1285)  proceeded  on  a  ground  that 
is  not  pretended  in  this  petition,  but  is  expressly  contradicted.  It  is, 
that  Cherokees  east  did  not  get  their  part  of  the  appropriation  of  1851, 
but  that  the  sum  here  claimed  vjas  paid  by  mistake  to  the  western 
Cherokees  !  whereas  these  claimants  admit  distinctly  that  they  received 
their  full  proportion  of  the  $914,026  13^  but  wish  to  be  heard  now  to 
say  that  they  were  entitled  to  more. 

I  subjoin  the  accounts  rendered  by  the  accounting  officers  on  the  two 
different  bases  above  referred  to,  to  be  found  at  pages  6  and  11  of 
Grow's  report. 

1st,    The  account  laith  the  old  settlers  is  asfolloius  : 

This  fund,  provided  by  the  treaty  of  1835,  consisted  of    |5, 600,000  00 

From  which  are  to  be  deducted,  under  the  treaty  of 
1846,  (fourth  article,)  the  sums  chargeable  under 
the  fifteenth  article  of  the  treaty  of  1835,  which, 
according  to  the  report  of  the  accounting  officers, 
will  stand  thus  : 

For  improvements $1,540,572  27 

For  ferries 159,572  12 

For  spoliations „...         264,894  09 

For  removal  and  subsistence  of  18,026 

Indians,  at  |53  33|  per  head... 961,386  66 

Debts  and  claims  upon  the  Cherokee 
nation,  viz  : 

National  debts  (10th  art.)  |18,062  06 

Claims  of   United  States 

citizens  (10th  article)...     61,073  49 

Cherokee  committee  (12th 

article) 22,212  76 

. 101,348  31 

Amount  allowed  United  States  for  ad- 
ditional quantity  of  land  ceded 500,000  00 

Amount  invested  as  general  fund  of 

the  nation 500,880  00 


Making  in  the  aggregate  the  sum  of. 4,028,653  45 


Which,  being  deducted  from  the  treaty  fund  of 
$5,600,000,  leaves  the  residuum  contemplated  by 
the  fourth  article  of  the  treaty  of  1846,  of 1,571,346  55 


J.    K.    ROGERS.  17 

Of  whicli  amount  one-third  is  to  be  allowed  to  the  western  Chero- 
kees  for  their  interest  in  the  Cherokee  country  east,  being  the  sura  of 
1523,782  18. 

2cL  The  account  loith  the  Cherokees  east  is  thus  stated : 

There  has  been  paid — 

For  improvements,  the  sum  of |1, 540, 572  27 

For  ferries,  the  sum  of 159,572  12 

For  spoliations,  the  sum  of 264,894  09 

For  removal  and  subsistence,  and  commutation  there- 
for, including  $2,765  84  expended  for  goods  for  the 
poorer  classes  of  Cherokees,  as  mentioned  in  the 
15th  article  of  the  treaty  of  1835-'36;  and  including, 
also,  necessary  incidental  expenses  of  enrolling 
agents,  conductors,  commissaries,  medical  attend- 
ance, supplies,  &-C.,  the  sum  of..., 2,952,196  26 

For  debts  and  claims  upon  the  Cherokee  nation,  the 

sum  of 101,348  31 

For  the  additional  quantity  of  land  ceded  to  said  na- 
tion,the  sum  of 500,000  00 

For  amount  invested  as  the  general  fund  of  the  nation, 

the  sum  of.... 500,880  00 


The  "aggregate  of  which  general  sums"  is 6,019,463  05 

And  which,  being  deducted  from  the  sum  of 6,647,067  00 

Agreeably  to  the  directions  of  the  ninth  article  of  the 

treaty  of  1846,  leaves  a  balance  of , 627,603  95 

due  to  the  Cherokee  nation. 

The  item  which  causes  the  balance  for  distribution  in  the  last  account 
to  fall  below  the  balance  in  the  first,  is  that  for  removal  and  subsistence. 
This  item  in  the  last  account,  as  stated  on  the  face  of  the  account, 
except  the  sum  of  $96,999  42,  which  was  stricken  out  by  the  kSenate, 
is  in  accordance  with  the  treaty  of  1835,  under  which  these  petitioners 
claim.  The  corresponding  item  in  the  first  account  was  made  up  in 
accordance  with  the  express  stipulation  with  the  old  settlers,  in  the4th 
article  of  the  treaty  of  1846,  and  upon  considerations  in  which  these 
claimants  had  no  part  whatever. 

2.  By  reference  to  vol.  24,  p.  2152,  vol.  22,  p.  1334,  of  Congres- 
sional Grlobe,  the  court  will  perceive  that  the  whole  Senate,  including 
Mr.  Sebastian,  who  has  been  throughout  the  ardent  friend  of  the  In- 
dians, concurred  in  saying  that  the  treaty  of  1846,  and  the  appropria- 
tion under  it.  were  to  be  a  finality  in  settling  with  the  Cherokees. 
Some  of  the  senators  thought  there  ought  to  be  further  or  additional 
allowances,  but  all  concurred  that  this  was  to  be  the  last;  and  it  will  be 
perceived  by  tlie  debate  in  1852,  that  even  the  vote  of  a  few  thousand 
dollars  to  supply  the  per  capita  to  those  Indians  who  had  failed  to  be 
present  to  receive  their  portion  of  the  ajjpropriation  of  1851  was  de- 
nied, because  there  had  been  a  final  adjustment  of  this  matter,  and 
Mis.  Doc.  94 2 


18  J.   K.   EOGERS, 

the  Senate  would  not  agree  to  re-open  it,  even  for  so  small  a  snm  and 
upon  sucli  grounds.  Indeed,  the  whole  proceedings  show  that  it  was 
the  settled  purpose  of  the  Senate  to  close  the  business  then  and  forever, 
and  the  only  question  was,  how  and  by  what  language  it  should  he 
done;  and  it  was  suggested  by  a  member  of  the  Committee  on  Indian 
Affairs,  that  the  best  mode  to  effect  it  was  to  say,  in  theappropriationy 
that  it  was  in  full  and  final,  not  with  respect  to.the  Cherokee  nation  as 
a  nation,  but  with  respect  to  the  Cherokee  nation  as  individuals,  for  it 
was  with  respect  to  individuals  only  they  were  legislating.  The  same 
is  true  of  the  action  of  the  House,  (see  vol.  23,  p.  603,  Congressional 
Globe.)  The  ground  taken  in  the  brief  that  the  receipt  provided  for  by 
the  law  was  from  the  nation  as  a  corporate  body,  and  therefore  such  a 
receipt  from  individuals  was  not  required,  overlooks  not  only  the  obvi- 
ous sense  in  which  the  words  "Cherokee  nation"  are  used  in  the  act^ 
but  the  whole  intent  of  the  act. 

It  is  perfectly  obvious  that  the  words  Cherokee  nation  in  this  appro- 
priation are  used  as  synonymous  with  all  the  Cherokees. 

3.  As  respects  the  third  proposition,  that  the  last  proviso  was  repug- 
nant to  the  purview,  and  so  must  stand,  I  do  not  see  how  that  aids  the 
argument  for  the  petitioners.  That  proviso  has  the  precise  effect  on 
the  construction  of  the  act  which  I  contend  for  above,  and  puts  it  be- 
yond doubt,  that  in  speaking  of  the  Cherokee  nation,  all  the  individuals 
of  the  nation,  and  not  the  nation  in  its  corporate  capacity  was  meant. 
It  will  be  seen  by  the  debates,  that  it  was  intended  that  the  money 
should  be  paid  to  the  individuals;  and  it  was  not  to  leave  any  doubt  about? 
construction  to  the  department  that  this  proviso  was  appended.  This 
was  morever  required,  as  a  compliance  with  both  the  treaties,  which 
stipulated  that,  after  certain  payments  out  of  the  five  millions  fund^  the 
balance  was  to  be  distributed  per  capita  by  the  government  of  the 
United  States.  The  government,  after  a  great  expense  and  delay, 
finally  adjusted  the  account,  added  interest  on  all  the  arrearages,  and 
made  the  distribution,  and  took  a  receipt  from  these  claimants,  ex- 
pressing that  it  v/asin  full.  Everything,  almost,  that  was  claimed  by 
the  intelligent  and  active  agents  who  represented  the  Indians  was  al- 
lowed ;  and  many  of  the  senators,  among  others  Mr.  Hunter,  the 
Chairman  of  the  Senate's  Committee  on  Finance,  expressly  saying  that 
much  was  allovv^ed  to  which  they  had  no  title,  but,  as  it  was  to  be  a 
final  settlement,  he  would  withdraw  all  opposition,  and  let  the  appro- 
priation pass.  Under  such  circumstances,  and  especially  in  view  of 
the  complicated  nature  of  the  business,  it  was  right  that  the  govern- 
ment should  demand  a  receipt  in  full,  and  have  an  express  recogni- 
tion that  this  was  to  be  a  final  adjustment  when  the  money  was  paid. 
Having  given  this,  the  petitioners  ought  not  to  be  heard. 
-  I  refer  the  Court,  for  an  able  exposition  on  this  subject,  and  an  un- 
answerable argument  against  the  claim,  to  the  speech  of  Mr.  Houston^ 
of  Alabama,  delivered  in  the  House  of  Representatives  on  the  24th 
March,  1854,  reported  in  part  1st  of  28th  volume  Congressional  Globe, 
page  738, 

M.  BLAIE. 


J.    K.    ROGERS.  19 

OPINION  OF  JUDGE  SCARBUEGH. 

J.  K.  Rogers  vs.  The  United  States. 

The  following  opinion  (in  the  case  of  J.  K.  Rogers  vs.  The  United 
States)  was  delivered  by  Judge  Scarburgh  on  November  29,  1855  : 

The  petitioner  belongs  to  the  class  of  Cherokees  contemplated  in  the 
twelfth  article  of  the  treaty  of  1835-'36.  That  article  is  as  follows  : 
"Those  individuals  and  families  of  the  Cherokee  nation  that  are 
averse  to  a  removal  to  the  Cherokee  country  west  of  the  Mississippi, 
and  are  desirous  to  become  citizens  of  the  States  where  they  reside, 
and  such  as  are  qualified  to  take  care  of  themselves  and  their  property, 
shall  be  entitled  to  receive  their  due  portion  of  all  the  personal  benefits 
accruing  under  this  treaty  for  their  claims,  improvements,  and  per 
capita,  as  soon  as  an  appropriation  is  made  for  this  treaty."  Having 
availed  himself  of  the  privilege  of  becoming  a  citizen  of  the  State 
where  he  resided,  he  no  longer  remained  an  ''individual"  of  the 
Cherokee  nation,  and  thereupon  became  entitled  to  a  portion  of  what- 
ever might  remain  to  be  distributed  per  cajnta,  as  provided  for  in  the 
treaty,  after  deducting  from  the  whole  fund  such  sums  of  money  as 
were  properly  chargeable  thereto. 

At  the  period  when  the  treaty  of  1846  was  concluded,  the  petitioner 
had  ceased  to  be  one  of  the  Cherokee  nation,  and,  not  being  represented 
by  any  of  the  parties  to  that  treaty,  he  was  not  bound  by  it.  The 
tenth  article  expressly  declares  that  nothing  in  the  treaty  contained 
shall  "  take  away  or  abridge  any  rights  or  claims  which  the  Cherokees 
now  residing  in  the  States  east  of  the  Mississippi  river  had,  or  may 
have,  under  the  treaty  of  1835  and  the  supplement  thereto."  The 
^Tst  pivviso  in  the  act  of  1851  must  be  construed  with  reference  to  the 
treaty  of  1846,  and  is  properly  applicable,  as  in  terms  it  is  declared 
to  be,  only  to  the  Cherokee  naHon,  or  to  the  individuals  then  composing 
that  nation.  To  extend  the  construction  of  that  proviso  so  as  to  em- 
brace the  petitioner  would  not  only  be  inconsistent  with  its  words,  but 
do  violence  to  the  spirit  of  the  tenth  article  of  the  treaty  of  1846.  If, 
therefore,  the  settlement,  which  took  place  after  the  treaty  of  1846, 
be  unjust  or  erroneous  in  any  respect,  the  petitioner,  notwithstanding 
he  has  received  his  due  proportion  of  the  amount  paid  under  the  act 
of  1851,  is  still  not  barred  from  showing  the  error  or  from  availing 
himself  of  any  demand  to  which  its  correction  may  justly  entitle  him. 

The  petitioner  specifies  the  following  as  the  errors  of  which  he  com- 
plains in  that  settlement:  (1)  that  the  United  States  received  credit 
for  the  actual  expense  of  subsistence,  instead  of  at  the  rate  of  thirty- 
three  dollars  thirty-three  cents  for  each  Cherokee  subsisted  ;  (2)  that 
the  United  States  received  credit  for  the  actual  expense  of  removal, 
instead  of  twenty  dollars  for  each  Cherokee  removed  ;  (3)  that  the 
United  States  were  not  entitled  to  credit  on  account  of  both  spoliations 
and  subsistence  for  more  than  six  hundred  thousand  dollars,  but  they 
received  credit  for  a  much  larger  sum  ;  and  (4)  that  credit  was  im- 
properly given  to  the  United  States  for  the  expenses  of  the  committee 
appointed  under  the  twelfth   article  of  the  treaty.     This  is  not  the 


20  •  J.    K     EOGERS. 

precise  form  of  specification  of  errors  adopted  by  the  petitioner,  but  it 
substantially  embraces,  as  we  understand  the  petition,  his  whole  com- 
plaint. 

By  the  first  article  of  the  treaty  of  1835,  the  Cherokee  nation  ceded 
their  lands  east  of  the  Mississippi  river,  and  released  all  their  claims 
for  spoliati  ns  to  the  United  States,  for  the  sum  of  five  millions  of 
dollars,  to  be  expended,  paid,  and  invested  in  the  manner  stipulated 
and  agreed  upon  in  the  subsequent  articles.  It  was  agreed  to  be  sub- 
mitted to  the  Senate  whether,  in  their  offer  of  five  millions  of  dollars 
to  the  Cherokee  Indians  for  all  their  lands  and  possessions  east  of  the 
Mississippi  river,  claims  for  spoliations  were  included  ;  and  if  they 
were  not,  then  an  additional  sum  of  three  hundred  thousand  dollars 
was  to  be  allowed  for  that  purpose.  The  award  of  the  Senate  is  to  be 
found  in  the  supplementary  articles. 

The  second  and  third  supplementary  articles  are  as  follows  : 
"  Article  2.  Whereas  the  Cherokee  people  have  supposed  that  the 
sum  of  five  millions  of  dollars  fixed  by  the  Senate  in  their  resolution 

of day  of  March,  1835,  as  the  value  of  the   Cherokee  lands  and 

possessions  east  of  the  Mississippi  river,  was  not  intended  to  include 
the  amount  which  may  be  required  to  remove  them,  nor  the  value  of 
certain  claims  which  many  of  their  people  had  against  citizens  of  the 
United  States,  which  suggestion  has  been  confirmed  by  the  opinion 
expressed  to  the  War  Department  by  some  of  the  senators  who  voted 
upon  the  question  ;  and  whereas  the  President  is  willing  that  this 
subject  should  be  referred  to  the  Senate  for  their  consideration,  and  if 
it  was  not  intended  by  the  Senate  that  the  above  mentioned  sum  of 
five  millions  of  dollars  should  include  the  objects  herein  specified,  that 
in  that  case  such  iurther  provision  should  be  made  therefor  as  might 
appear  to  the  Senate  to  be  just. 

"  Article  3.  It  is,  therefore,  agreed  that  the  sum  of  six  hundred 
thousand  dollars  shall  be,  and  the  same  is  hereby,  allowed  to  the 
Cherokee  people,  to  include  the  expense  of  their  removal,  and  all 
claims,  of  every  nature  and  description,  against  the  government  of  the 
United  States  not  herein  otherwise  expressly  provided  for,  and  to  be 
in  lieu  of  the  said  reservations  and  pre-emptions,  and  of  the  sum  of 
three  hundred  thousand  dollars  for  spoliations  described  in  the  1st 
article  of  the  above  mentioned  treaty.  This  sum  of  six  hundred 
thousand  dollars  shall  be  applied  and  distributed  agreeably  to  the 
provisions  of  the  said  treaty,  and  any  surplus  which  may  remain  after 
removal  and  payment  of  the  claims  so  ascertained  shall  be  turned  over 
and  belong  to  the  education  fund." 

So  much  of  the  8th  article  of  the  treaty  of  1835  as  it  is  necessary 
now  to  consider  is  in  these  words :  "■  The  United  States  also  agree 
and  stipulate  to  remove  the  Cherokees  to  their  new  homes  and  to  sub- 
sist them  one  year  after  their  arrival  there,  and  that  a  sufficient  num- 
ber of  steamboats  and  baggage  wagons  shall  be  furnished  to  remove 
them  comfortably,  and  so  as  not  to  endanger  their  health,  and  that  a 
physician,  well  supplied  with  medicines,  shall  accompany  each  detach- 
ment of  emigrants  removed  by  the  government.  Such  persons  and 
families  as,  in  the  opinion  of  the  emigrating  agent,  are  capable  of 
subsisting  and  removing  themselves,  shall  be  permitted  to  do  so  ;  and 


J.    K,    ROGERS  21 

they  shall  be  allowed  in  full  for  all  claims  for  the  same  twenty  dollars 
for  each  member  of  their  family,  and,  in  lieu  of  their  one  year's  rations, 
they  shall  be  paid  the  sum  of  thirty-three  dollars  and  thirty-three 
cents,  if  they  prefer  it." 

So  much  of  the  fifteenth  article  of  the  treaty  as  it  is  important  now 
to  notice  is  as  follows  :  "  It  is  expressly  understood  and  agreed  between 
the  parties  to  this  treaty  that,  after  deducting  the  amount  which  shall 
be  actually  expended  for  the  payment  for  improvement,  ferries,  claims 
for  spoliations,  removal,  subsistence,  and  debts  and  claims  upon  the 
Cherokee  nation,  and  for  the  additional  quantity  of  lauds  and  goods 
for  the  poorer  class  of  Cherokees,  and  the  several  sums  to  be  invested 
for  the  general  national  funds,  provided  for  in  the  several  articles  of 
this  treaty,  the  balance,  whatever  the  same  may  be,  shall  be  equally 
divided  between  all  the  people  belonging  to  the  Cherokee  nation  east, 
according  to  the  census  just  completed." 

The  twelfth  article  of  the  treaty  provides  for  the  appointment  of  a 
committee  for  certain  purposes  therein  mentioned. 

It  is  to  be  observed  that,  by  the  eighth  article  of  the  treaty,  two 
modes  of  removal  and  subsistence  are  provided  for  :  the  one  to  be 
effected  by  the  United  States,  and  the  other  by  such  persons  and 
families  as,  in  the  opinion  of  the  emigrating  agent,  were  capable  of 
subsisting  and  removing  themselves.  Those  persons  and  families  were 
to  be  permitted  to  remove  and  subsist  themselves,  and  in  that  event 
each  of  them  was  to  receive  for  removal  twenty  dollars,  and  for  sub- 
sistence thirty-three  dollars  and  thirty-three  cents.  The  effect  of  this 
article  was  to  create  an  obligation  on  the  part  of  the  United  States  to 
remove  and  subsist  all  the  Cherokees,  except  such  as  might  elect  and 
be  permitted,  in  the  manner  prescribed,  to  remove  and  subsist  them- 
selves. And  it  is  obvious,  from  the  express  language  of  the  eighth 
article,  that  the  amount  to  be  expended  for  removal  and  subsistence 
was  limited  only  when  the  latter  method  of  removal  and  subsistence 
should  be  adopted.  This  article  contains  no  provision  as  to  the  party 
by  whom  the  expense  of  removal  and  subsistence  was  to  be  borne,  or 
the  fund  out  of  which  it  was  to  be  paid. 

The  fifteenth  article  of  the  treaty  expressly  declares  'H-hat,  after 
deducting  the  amount  which  shall  be  actually  expended  for  the  pay- 
ment for  *  *  *  spoliations,  removal,  subsistence,"  &c.,  the 
''  balance,  whatever  the  same  may  be,  shall  I  e  equally  divided  between 
all  the  people  belonging  to  the  Cherokee  nation  east,  according  to  the 
census  just  completed."  This  includes,  in  express  terms,  as  well 
removal  and  subsistence  as  spoliations,  and  there  is  no  room  for  doubt 
or  uncertainty,  and  nothing  left  to  construction  in  regard  to  them. 
On  the  contrary,  it  is  clear,  beyond  dispute  or  cavil,  that  the  expense 
of  removal  and  subsistence,  as  well  as  of  spoliation,  was  to  be  borne 
by  the  treaty  fund  ;  and  it  is  equally  clear,  as  we  have  already  seen, 
that,  if  the  removal  and  subsistence  were  effected  and  provided  for  by 
the  United  States,  then  the  amount  actually  exj^ended  therefor  ;  or  if 
by  the  Cherokees  themselves,  then  the  sum  of  fifty-three  dollars  and 
thirty-threo  cents  per  head  was  to  be  deducted  from  that  fund.  These 
views  so  obviously  result  from  the  express  language  of  the  treaty  that 
it  seems  to  us  that  there  can  be  no  just  ground  for  a  difference  of 
opinion  in  regard  to  them. 


2^  •  J.    K    EOGERS. 

But,  notwithstanding  the  language  of  the  treaty  was  thus  plain  and 
unequivocal,  if  the  parties  have  concurred  in  a  different  interpretation 
of  it,  that  interpretation  ought  to  he  adopted.  This  consideration 
renders  it  eminently  proper  that  we  should  review  the  acts  of  the  par- 
ties in  relation  to  the  treaty. 

Before  the  treaty  of  1835  was  ratified  hy  the  Senate,  a  difficulty  in 
regard  to  its  construction  arose^  and  it  seems  to  have  been,  to  a  great 
extent,  the  occasion  of  the  supplementary  articles.  We  find  it  stated 
in  the  second  supplementary  article  that  the  Cherokee  people  had  sup- 
posed that  the  sum  of  five  millions  of  dollars,  mentioned  in  the  first 
article  of  the  treaty,  "was  not  intended  to  include  the  cost  of  removal, 
or  the  value  of  certain  claims  which  many  of  their  people  had  against 
the  citizens  of  the  United  States  ;"  hut  there  is  no  concession  on  the 
part  of  the  United  States  that  the  supposition  of  the  Cherokee  people 
was  well  founded.  The  fact  that  it  existed,  not  that  it  had  any  just 
foundation,  is  stated  as  the  reason  why  the  suplementary  article  was 
adopted.  If  it  had  been  intended  that  the  entire  expense  of  removal 
and  spoliations  was  to  be  borne  by  the  United  States,  there  would, 
as  there  should,  have  been  a  stipulation  expressly  so  declaring.  But, 
instead  of  this,  a  certain  sum  to  be  paid  by  the  United  States  for  these 
and  other  purposes  is  agreed  upon  and  inserted  in  the  treaty.  To  the 
extent  of  that  sum  the  United  States  became  bound,  but  no  further. 
It  may  be  said,  and  perhaps  with  justice,  that  this  did  not  amount  to 
a  concession  of  right  on  either  side.  It  was  doubtless  supposed  that 
no  further  difficulty  would  arise.  But,  as  regards  the  United  States, 
the  most  that  can  be  justly  urged  is,  that,  in  view  of  the  impressions 
of  the  Cherokees,  they  so  far  yielded  to  them  as  to  agree  to  allow  them 
the  additional  sum  of  six  hundred  thousand  dollars.  There  can  be  no 
justice  or  propriety  in  saying  that  they  either  did  or  designed  to  do 
more.  On  the  contrary,  the  very  fact  that  they  limited  the  sum  con- 
clusively shows  that  they  intended  thereby  to  limit  the  extent  of  their 
obligation.  Such,  it  seems  to  us,  is  the  obvious  construction  of  the 
supplementary  articles. 

Bat  further  difficulty  arose.  The  treaty  of  1835-'36  had  been  con- 
cluded in  opposition,  it  was  said,  to  the  will  of  a  large  majority  of  the 
Cherokee  nation.  Tliis  majority,  under  the  counsels  of  John  Ross, 
had  uniformly  refused  to  recognize  that  treaty  as  obligatory  upon 
them,  and  had  obstinately  withstood  all  the  efforts  of  the  government 
of  the  United  States  to  induce  them  to  adopt  it  or  emigrate  under  its 
provisions.  In  the  meantime,  within  the  period  limited  by  the  treaty, 
most  of  what  was  called  "the  treaty  party"  had  emigrated  to  the 
west.  Finally,  the  "Ross  party,"  still  adhering  to  the  idea  that  they 
were  in  no  way  bound  by  the  treaty,  made  a  proposition  to  the  United 
States  "to  release  all  claim  to  their  country  and  emigrate  for  a  named 
sum  of  money,  in  connexion  with  other  conditions,  among  which  was 
the  stipulation  that  they  should  be  allowed  to  take  charge  of  their  own 
emigration,  and  that  the  United  States  should  pay  the  expense  of"  it. 
But  this  proposition  was  never  acceded  to,  either  by  treaty  or  legisla- 
tive enactment.  The  Secretary  of  War,  in  reply  to  it,  said  :  "If  it 
be  desired  by  the  Cherokee  nation  that  their  own  agents  should  have 
the  charge  of  their  emigration,  their  wishes  will  be  complied  with. 


J.    K.    KOGERS.  23 

and  instructions  he  given  to  the  commanding  general  in  the  Cherokee 
countrj'  to  enter  into  arrangements  with  them  to  that  effect.  With 
regard  to  the  expense  of  this  operation,  which  you  ask  may  he  defrayed 
by  the  United  States,  in  the  opinion  of  the  undersigned  the  request 
ought  to  be  granted,  and  an  application  for  such  further  sum  as  may 
be  required  for  this  purpose  shall  be  made  to  Congress."  But  the 
Secretary  of  War  had  no  authority  to  act  in  the  premises,  except  so 
far  as  he  might  do  so  in  execution  of  the  treaty.  And  the  only  action 
which  Congress  took  upon  the  subject  was  to  pass  the  act  of  June  12, 
1838,  which  is  as  follows  : 

"  That  the  further  sum  of  one  million  forty-seven  thousand  and 
sixty-seven  dollars  be  appropriated,  out  of  any  money  in  the  treasury 
not  otherwise  appropriated,  in  full  for  all  objects  specified  in  the  third 
article  of  the  supplementary  articles  of  the  treaty  of  eighteen  hun- 
dred and  thirty-five,  between  the  United  States  and  the  Cherokee 
Indians,  and  for  the  further  object  of  aiding  in  the  subsistence  of  said 
Indians  for  one  year  after  their  removal  west  :  Provided,  That  no 
])art  of  the  said  sum  of  money  shall  be  deducted  from  the  five  millions 
stipulat-ed  to  be  paid  to  said  tribe  of  Indians  by  said  treaty :  And  pro- 
vided, further,  That  the  said  Indians  shall  receive  no  benefit  from  the 
said  appropriation  unless  they  shall  complete  their  emigration  within 
such  time  as  the  President  shall  deem  reasonable,  and  without 
coercion  on  the  part  of  the  government." — (5  Stat,  at  Large,  242.) 

The  action  of  the  Secretary  of  War  was  nothing  more  than  a  mere 
offer,  on  the  part  of  the  United  States,  to  execute,  in  good  faith^  so 
much  of  the  eighth  article  of  the  treaty  of  1835-'36  as  provides  that 
such  persons  and  families  as,  in  the  opinion  of  the  emigration  agent, 
were  capable  of  subsisting  and  removing  themselves  should  be  per- 
mitted to  do  so  ;  and  the  act  of  Congress  was  a  mere  legislative  ap- 
propriation of  one  million  forty-seven  thousand  and  sixty-seven  dol- 
lars, to  be  applied  to  the  purposes  therein  mentioned.  It  was 
obviously  consistent  with  the  express  terms  of  the  eiglith  article  of  the 
treaty  for  the  Secretary  of  War  to  permit  the  "  Ross  party,"  if  they 
could  bring  themselves  within  the  provisions  of  that  article,  to  remove 
themselves.  If  they  availed  themselves  of  this  permission,  then  it 
followed,  as  a  necessary  consequence,  that  they  could  only  be  allowtd 
for  all  claims  for  the  same  at  the  rate  of  twenty  dollars  for  each 
Cherokee  so  removed,  for  so  the  treaty  expressly  provides.  But  the 
Secretary  of  War  had  no  authority  to  say,  so  as  thereby  to  bind  the 
United  States,  that  the  expense  of  their  removal  would  be  borne  by 
the  United  States,  or  that  it  would  be  paid  otherwise  than  as  the 
treaty  provided  ;  nor  did  he  undertake  to  do  so.  He  merely  expressed 
the  opinion  that  the  request  of  the  Cherokee  nation,  that  the  expense 
of  tneir  removal  should  be  defrayed  by  the  United  States,  ought  to  he 
granted,  and  gave  assurance  that  an  application  for  such  further  sum 
as  might  be  required  for  that  purpose  should  be  made  to  Congress. 
He  complied  with  his  engagement.  The  whole  subject,  with  his  esti- 
mates made  under  a  resolution  of  the  House  of  Representatives,  was 
communicated  by  the  President  to  Congress.  Congress,  however,  did 
not  concur  in  the  opinion  which  had  been  expressed  by  the  Secretary 
of  War,  but  merely  passed  the  act  of  June  12,  1838.     In  the  passage 


24  •  J.    K.    EOGEES. 

of  this  act  Congress  seems  to  have  been  governed  by  the  same  policj 
which  characterized  the  supplementary  aiticles.  It  was  simply  an 
appropriation  of  money  for  the  objects  therein  mentioned,  but  nothing 
more.  We  do  not  pause  to  inquire  whether  this  money  was  properly 
applicable  to  any  other  objects  than  removal  and  subsistence.  It  is 
not  necessary  for  us  to  consider  that  point. 

Before  the  expiration  of  the  year  eighteen  hundred  and  thirty- 
eight,  the  entire  removal  of  the  Cherokees  to  their  new  homes  was 
effected.  In  August,  A.  D.  1846,  the  treaty  of  that  date  was  made, 
but  the  petitioner,  not  being  a  party  thereto,  was  not  bound  by  it. 
This  we  have  already  seen.  He  does  not  in  any  way  found  his  claim 
upon  that  treaty,  but  as  he  has,  both  in  his  petition  and  in  argument^ 
referred  to  it,  and  to  the  action  of  the  Senate  thereon,  it  is  incumbent 
upon  us  briefly  to  notice  both.  He  correctly  states  that  the  third  and 
ninth  articles  of  that  treaty  establish  the  basis  of  settlement  with  the 
Cherokee  emigration  under  the  treaty  of  1835.  The  ninth  article,  in 
declaring  what  sums  shall  be  deducted  from  the  treaty  fund,  in 
express  terms  includes  all  sums  properly  expended  under  the  treaty 
of  1835  for  spoliation-,  removal,  and  subsistence,  and  commutation 
therefor.  By  the  eleventh  article,  the  question  whether  the  amount 
expended  for  subsistence  was  properly  chargeable  to  the  treaty  fund 
was  submitted  to  the  Senate.  The  Senate  awarded  that,  under  the 
circumstances,  the  Cherokee  nation  were  entitled  to  the  sum  of  one 
hundred  and  eighty-nine  thousand  four  hundred  and  twenty-two  dol- 
lars and  seventy-six  cents  for  subsistence,  being  the  difi'erence  be- 
tween the  amount  allowed  by  the  act  of  June  12,  1838,  and  the 
amount  actually  paid  and  expended  by  the  United  States,  and  which 
excess  was  improperly  charged  to  the  treaty  fund  in  the  report  of  the 
accounting  officers  of  the  treasury,  and  that  interest  at  the  rate  of 
five  per  cent,  per  annum  should  be  allowed  thereon  from  the  twelfth 
day  of  June,  A.  D.  1838,  until  paid.  The  substantial  effect  of  this 
award  seems  to  be  that  by  the  act  of  June  12,  1838,  the  United 
States  provided  for  the  payment  of  the  sum  of  six  hundred  and 
eleven  thousand  one  hundred  and  five  dollars  and  fifty-five  cents, 
part  of  the  expenses  of  subsistence,  and  that  the  residue  thereof — to 
wit,  the  sum  of  one  hundred  and  eighty-nine  thousand  four  hundred 
and  twenty- two  dollars  and  seventy-six  cents — was  not  chargeable  to 
the  treaty  fund.  It  was  professedly  not  founded  upon  the  construc- 
tion of  the  treaty,  but  upon  the  peculiar  circumstances  connected  with 
the  transactions  which  had  occurred  between  the  "  Koss  party"  and 
the  United  States.  It  affords  but  little  aid,  therefore,  in  the  investi- 
gation of  this  case. 

We  have  thus  presented  a  brief  review  of  the  course  pursued,  as 
well  by  the  United  States  as  the  Cherokees,  under  the  treaty  of 
1832-'36,  and,  as  regards  the  questions  now  under  consideration,  it 
presents  not  a  single  instance  in  which  they  have  concurred  in  an  inter- 
pretation of  that  treaty  different  from  that  which,  as  we  liave  seen, 
is  authorized  and  required  by  its  language,  understood  in  its  ordinary 
sense. 

It  seems  to  us,  therefore,  that  the  sums  expended  for  removal,  sub- 
sisience,  and  spoliations  were  properly  chargeable  to  the  treaty  fund; 


J.   K    KOGEES.  25 

that  the  sums  actually  expended  therefor  were  to  he  deducted  from 
that  fund,  and  that  the  expense  of  removal  and  subsistence  was 
limited,  the  one  to  twenty  and  the  other  to  thirty-three  dollars  and 
thirty-three  cents,  only  in  regard  to  such  of  the  Cherokees  as,  under  the 
eighth  article  of  the  treaty,  were  allowed  to  remove  and  subsist  them- 
selves. 

We  come  now  to  the  fourth  specification  of  error,  which  relates  to 
the  committee  appointed  under  the  twelfth  article  of  the  treaty  of 
1835-"36.  It  seems  to  us  that  the  expense  of  this  committee  was  a 
proper  charge  against  the  Cherokees.  Although  it  Avas  appointed  by 
the  mutual  agreement  of  the  parties,  yet  it  did  not  represent  the  United 
States,  or  act  in  their  behalf,  or  render  any  services  for  them.  It  was, 
in  the  language  of  the  treaty,  "a  committee  on  the  part  of  the  Chero- 
kees'' appointed  "to  transact  all  business  on  the  part  of  the  Indians 
which  [might]  arise  in  carrying  into  effect  the  provisions  of  [the] 
treaty,  and  settling  the  same  with  the  United  States." 

The  United  States,  in  concurring  in  its  appointment,  did  nothing 
more  than  agree  to  recognise  it  as  the  authorized  agent  of  the  Chero- 
kees. As,  then,  it  represented  the  Cherokees  and  acted  for  their 
benefit — did  their  business  alone — they  alone  should  bear  the  expense 
of  it.  Nothing  short  of  an  agreement  on  the  part  of  the  United  States 
to  that  effect  could  render  them  liable  for  it ;  and  we  look  in  vain  into 
the  treaty  for  any  such  agreement.  The  mere  fact  that  the  fitleenth 
article  does  not  contain  a  provision  in  regard  to  the  expense  of  this 
committee  furnishes  no  ground  whatever  for  the  implication  of  the 
liability  of  the  United  States  for  it.  If  it  had  been  a  committee  on 
the  part  of  the  United  States  to  represent  and  act  for  them,  then  the 
omisgion  of  any  notice  of  it  in  the  fifteenth  article  would  be  conclusive 
to  show  their  liability  for  the  expense  of  it.  But,  as  we  have  seen, 
it  was  not  a  committee  of  that  character.  The  United  States,  how- 
ever, did  defra}^  the  expense  of  this  committee,  and  they  have  been 
reimbursed  out  of  the  treaty  fund.  But  of  this  the  Cherokees  can 
have  no  just  ground  of  complaint;  because,  it  being  a  proper  charge 
against  them,  they  were  liable  for  it,  and  being  so  liable,  it  was  im- 
material out  of  what  fund  belonging  to  them  it  was  paid. 

It  is  not  alleged  in  the  petition  that  the  sums  for  which  the  United 
States  received  credit  in  their  settlement  with  the  Cherokees  for  spo- 
liations, removal,  and  subsistence  were  not  actually  and  in  good  faith 
expended. 

We  are,  therefore,  of  the  opinion  that  the  facts  set  forth  in  the  pe- 
tition of  the  claimant  do  not  furnish  any  ground  for  relief,  and  that 
the  taking  of  testimony  in  this  case  shall  not  be  ordered. 

Let  a  judgment  be  entered  accordingly. 


IN   THE   UNITED   STATES   COURT   OF   CLAIMS. 

To  the  honorahle  the  Court  of  Claims  of  the  United  States  of  America: 

Your  ])etitioner,  Johnson  K.  Rogers,  by  birth   and  blood   a  Chero- 
kee Indian,   and   one   of  those  persons  of  the  Cherokee  nation  who 


2B  J     K     ROGERS. 

remained  east  of  the  river  Mississippi  after  the  making  of  the  treaty 
of  1835  between  the  United  States  and  the  Cherokee  nation,  and  who 
were  commonly  known  as  the  "Eastern  Cherokees,"  petitioning  for 
himself  and  for  and  on  behalf  of  all  other  of  said  Eastern  Cherokees, 
entitled  like  and  with  himself  to  certain  rights  hereinafter  set  forth, 
under  the  treaty  of  1835,  the  supplement  thereto  of  1836,  the  act  of 
Congress  of  June  12,  1838,  and  the  several  decisions  of  the  Senate  of 
the  United  States  hereinafter  mentioned  ;  by  this  his  amended  and 
SUBSTITUTED  petition,  by  leave  of  the  Court  filed  in  the  place  and 
stead  of  the  original,  most  respectfully  shows  and  represents  : 

That  at  an  early  day,  long  prior  to  the  year  1828,  the  United 
States  became  desirous  of  purchasing  the  country  owned  and  pos- 
sessed by  the  Cherokee  nation  of  Indians,  east  of  the  Mississippi  river, 
in  the  States  of  G-eorgia,  North  and  South  Carolina,  Alabama,  and 
Tennessee,  and  of  inducing  said  Indians  to  remove  to  and  occupy  a 
new  country  west  of  the  Mississippi. 

That  by  article  7  of  the  treaty  of  July  2,  1791,  (7  Stat,  at  Large, 
39,)  the  United  States  had  solemnly  guarantied  to  the  Cherokee  na- 
tion all  tlieir  lands  not  thereby  ceded  ;  which  solemn  guarantee  was 
repeated  by  article  6  of  the  treaty  of  October  2,  1798. — (Id.  G3.) 

That  prior  to  the  year  1817,  a  portion  of  the  Cherokee  people  emi- 
grated to  the  western  side  of  the  Mississippi  river,  and  selected  and 
received,  in  exchange  for  their  lands  east  of  that  river,  a  country  upon 
the  Arkansas  and  White  rivers  ;  which  exchange  was  effected  by  the 
treaty  of  July  8.  1817,  (Id.  156  ;)  and  by  that  treaty  provision  was 
made  for  taking  a  census  of  those  of  the  Cherokees  who  should  deter- 
mine to  remain  east  of  the  Mississippi,  and  of  those  who  had  removed 
or  intended  to  remove  ;  and  the  United  States  agreed  to  give  to  the 
latter  as  much  land,  west  of  the  Mississippi,  as  they  had  received  or 
should  receive  from  the  nation  east  of  the  Mississippi,  acre  for  acre, 
as  the  just  proportion  due  those  who  had  removed  or  should  remove, 
agreeably  to  their  numbers.  And,  by  article  6,  the  United  States 
also  bound  themselves  to  give  to  every  poor  warrior  who  should  emi- 
grate, a  rifle-gun  and  ammunition,  a  blanket  and  kettle,  a  beaver 
trap  ;  to  oAd  in  their  removal,  furnishing  boats  and  provisions  there- 
for ;  and  to  pay  them  the  full  value  of  all  their  improvements  which 
added  real  value  to  their  lands. 

That  by  the  treaty  of  February  27,  1819,  (Id.  195,)  the  United 
States  accepted  a  cession  of  certain  lands  by  the  Cherokees,  as  in  full 
for  the  lands  assigned  those  who  had  removed,  upon  Arkansas  and 
White  rivers  ;  and  it  was  thereby  agreed,  that  those  who  had  emi- 
grated, and  who  were  afterwards  called  the  "old  settlers,"  were,  in 
number,  one-third  of  the  whole  nation. 

That  by  article  8  of  the  treaty  of  May  6,  1828,  (Id  311,)  made  be- 
tween these  Western  Cherokees  and  the  United  States,  for  settling  the 
boundaries  of  their  country  west  of  the  Mississippi,  it  was  agreed  by 
the  United  States,  that  to  every  head  of  a  Cherokee  family,  then 
residing  in  any  State  east  of  the  Mississippi,  who  would  remove  west, 
should  be  given  a  good  rifle,  a  blanket,  kettle,  and  five  pounds  of 
tobacco,  and  to  each  member  of  his  family  a  blanket ;  and  also  a  just 
compensation  for  the*  property  he  might  abandon.     And  it  was  further 


J.   K.    ROGERS.  27 

agreed,  that  the  cost  of  the  emigration  of  all  such  should  be  home  hy  the 
United  States,  and  good  and  suitable  ways  opened,  and  provisions  pro- 
cured for  their  comfort,  accommodation,  and  support,  by  the  way, 
and  'provisions  for  tivelve  months  after  their  arrival  at  the  agency  ;  and 
$50  to  every  head  of  a  family  with  four  persons,  who  should  emigrate 
from  Georgia,  &c. 

That  this  provision  was  continued  in  full  force  by  the  treaty  (de- 
clared supplementary)  of  February  14^  1883,  (Id.  414  ;)  and  by  article 
17  of  the  treaty  of  December  29,  1835,  (Id.  486,)  it  was  declared  that 
all  stipulations  in  former  treaties,  not  thereby  annulled  or  superseded, 
should  continue  in  full  force  and  virtue. 

That  in  February,  1835,  while  the  treaties  of  1817  and  1828  re- 
mained in  full  force,  a  delegation  of  the  Eastern  Cherokees,  then  in 
Washington,  proposed  to  sell  to  the  United  States  the  whole  Cherokee 
country,  east  of  the  Mississippi,  for  $20,000,000  ;  the  Indians  to  re- 
move and  subsist  themselves,  and  the  United  States  to  pay  their 
claims  for  losses  and  spoliations,  caused  by  the  adjoining  States  and 
their  citizens.  This  proposition  being  deemed  by  the  President  to  be 
too  extravagant,  the  Cherokee  delegation  proposed  that  the  matter 
should  be  submitted  to  the  Senate  for  its  sense  u[)on  the  question  ; 
agreeing  that  they  would,  as  individuals,  abide  by  the  award  of  the 
Senate,  and  recommend  it  to  their  people. 

That  this  proposition  was  accepted  by  the  President,  with  a 
declaration  on  his  part  that  he  was  willing  to  go  as  far  as  the  Senate 
would  ;  and  accordingly,  the  matter  was  submitted  to  the  Senate  for 
its  decision  and  award  upon  the  question  ;  and  thereupon  the  Senate 
decided  that  "a  sum  not  exceeding  five  millions  of  dollars  should  be 
paid  to  the  Qi\\exokeQlnA\2ix\s,,  for  all  their  lands  and  possessions  e2i?,t 
of  the  Mississippi  river  ;"  and  this  award  was  communicated  to  the 
Cherokee  delegation  by  the  Secretary  of  War,  on  the  6th  day  of 
March,  1835  ;  and  he  then  offered  (using  the  terms  claims,  and  lands 
and  ^possessions,  as  convertible  terms,)  to  treat  with  them  for  a  cession 
of  all  the  claims  of  the  Cherokees  east  of  the  Mississippi  river,  on 
condition  that  the  whole  amount  of  the  consideration  should  not 
exceed  the  sum  of  $5,000,000. 

That  the  delegation  then  requested  to  be  informed  whether  that 
sum  was  intended,  as  appeared  from  the  letter  of  the  award,  to  be  the 
consideration  for  the  extinguishment  of  the  Cherokee  title  to  their 
lands,  and  for  their  houses  and  improvements  alone  ;  and  whether  the 
United  States  would,  in  addition,  pay  the  expenses  of  transportation 
and  subsistence  in  the  removal  of  the  Indians,  according  to  the  pro- 
visions of  the  treaty  of  1828  ;  or  whether  the  expenses  of  removal, 
subsistence  during  removal,  and  subsistence  for  twelve  months  after 
removal,  and  for  blankets,  guns,  &c.,  were  to  be  paid  out  of  and 
charged  against  the  five  millions  of  dollars.  They  said  that  it  was 
indispensable  that  they  should  be  informed  on  this  point,  without  which 
they  could  not  treat. 

That  to  this  the  Secretary  of  War  answered  that  the  $5,000,000 
would  be  in  full  for  their  entire  cession,  and  tliat  nothing  more  would 
be  paid  for  removal,  or  for  any  other  i)urpose  or  object  whatever. 
And  he  added,  "  In  giving  to  you  the  full  value  of  your  pi'ojDerty,  the 


28  J.    K.    ROGERS. 

United  States  coinply  with  all  the  demands  of  justice  upon  them. 
And  he  informed  them  that  thus  the  intercourse  in  writing  between 
them  and  him  was  closed. 

That  the  President  and  Secretary  of  War  then  and  always  after- 
wards admitted  that  the  $5,000,000  was  offered  as  the  price  of  their 
lands  and  po-tsessionf:,  or  possessory  rights  and  claims  to  their  lands 
alone;  hut  claimed  that  the  United  States  having  thus  agreed  to  pay 
the  full  value  of  such  lands  or  claims  and  possessory  rights,  the  Che- 
rokees  had  no  claim  on  a7iy  ground  that  the  United  States  should  also, 
and  in  addition,  pay  their  claims  for  spoliations,  and  remove  and  sub- 
sist them.  But  the  Cherohees  understood  that  the  award  merely  fixed 
the  price  and  value  of  their  rights  to  their  lands,  and  of  their  im- 
provements ;  that  the  treaty  stipulations  remained  in  force,  by  which 
the  United  States  were  bound  to  remove  and  subsist  them  ;  and  that 
the  claims  for  spoliations  were  also  to  be  paid,  in  addition  to  the  sum 
of  $5,000. 

That  this  question  thus  arising,  the  Cherokee  delegation  declined 
to  treat,  suggesting  that  the  proposition,  as  understood  by  the  Presi- 
dent, might  be  submitted  to  their  nation  ;  and  afterwards,  on  the  14th 
Marchj  1885,  articles  of  a  treaty  were  agreed  on  by  another  set  of  dele- 
gates of  the  Cherokees,  to  be  submitted  to  the  Cherokee  nation  for  their 
consideration  ;  by  which  articles  it  was  proposed  that  the  Cherokees 
should  cede  their  whole  country  for  the  consideration  of  $4,500,000, 
and  800,000  acres  of  land  west  of  the  Mississippi ;  out  of  which  sum 
of  $4,500,000  were  to  be  deducted,  as  appeared  by  a  schedule  thereto 
annexed,  expenses  of  removal,  estimated  at  $255,000;  subsistence,  esti- 
mated at  $400,000  ;  claims  and  spoliations,  estimated  at  $250,000  ; 
and  for  blankets,  rifles,  and  kettles,  $80,000. 

That  these  articles  for  a  treaty  were,  in  the  fall  of  the  year  1835, 
sent  out  to  the  Cherokees  by  a  commissioner  appointed  to  treat  with 
them  ;  that,  in  an  address  to  the  Cherokees  by  the  President,  also  sent 
therewith,  they  were  informed  that  the  Senate  had  given  their  opinion 
of  the  value  of  the  Cherokee  ])ossessions ;  that  the  articles  provided  for 
their  removal  at  the  expense  of  the  United  States,  for  their  subsistence 
for  a  year,  for  a  gratuity  of  $150  to  each  person,  and  for  the  usual  sup- 
ply of  rifles,  blankets,  and  kettles. 

That  the  commissioner  unitormly  and  repeatedly  informed  the  Chero- 
kees that  the  treaty  was  to  be  made  "  on  the  basis  of  the  $5,000,000 
awarded  by  the  Senate  ;"  *  *  *  that  it  was  to  be  a  treaty  for  the 
settlement  of  all  difficulties  between  the  Cherokees  and  the  United 
States,  "and  for  a  cession  of  all  their  lands  east  of  the  Mississippi,  on 
the  basis  of  the  award  of  the  Senate /or  the  same,  being  $5,000,000  ;" 
and  that  their  delegation,  authorized  to  settle  their  difficulties,  and 
enter  into  a  treaty  for  a  cession  of  their  entire  country,  did  agree  to 
sell  the  same  to  the  United  States  for  such  a  sum  as  the  Senate  should 
award  ;  and  that  the  Senate  fixed  the  price  at  $5,000,000. 

That  the  commissioner,  advised  of  the  Cherokee  understanding  as 
to  the  meaning  and  true  construction  of  the  award  of  the  Senate,  pro- 
posed to  the  Cherokees  that  if  any  important  points  of  difference 
should  arise  between  him  and  them  in  regard  to  that  award  they 
should  be  included  in  a  separate  and  conditional  article,  and  so  be 


J     K.    ROGERS.  29 

agaia  brought  before  the  President  and  Senate  for  their  final  determi- 
nation ;  and  accordingly  he  prepared  and  i)roposed  an  article  providing 
thai  as  a  (juestion  had  arisen  between  them  and  him  whether  the 
Senate  intended  to  include  in  their  award,  also,  the  just  claims  of  the 
Cherokees  against  the  United  States,  or  the,  price  of  their  land  only, 
therefore  that  matter  should  be  again  referred  to  the  Senate  for  its  de- 
termination ;  and   if  the   claims  were  not  intended  to  be  included, 

dollars  should  be  allowed  for  claims. 

That  the  Cherokees  declined  to  accept  the  articles  so  ])repared  ou 
the  ground  that  they  would  be  bound  and  the  United  States  would  not; 
but  that  finally  the  treaty  of  1835  was  concluded  with  a  portion  of 
said  nation,  it  being  understood  that  the  Senate  was  to  settle  the 
question  submitted  to  it  before  the  treaty  should  be  submitted  for  rati- 
fication. 

That,  by  the  letter  of  said  treaty,  it  was  submitted  to  the  Senate  to 
decide  whether  by  their  award  they  intended  that  the  claims  for  spo- 
liations should  be  paid  out  of  or  over  and  above  the  said  sum  of 
$5,000,000  ;  and  if  the  latter,  then  an  additional  sum  of  $300,000 
should  bo  allowed  for  spoliations ;  and  by  the  8th  article  the  United 
States  agreed  to  remove  the  Cherokees  to  their  new  homes,  and  sub- 
sist them  for  a  year  after  their  arrival  there,  furnishing  steamboats, 
baggage  wagons,  and  physicians  ;  or  to  allow  those  who  should  pre- 
fer to  remove  and  subsist  themselves,  $20  a  head  for  removal  and 
$33  33  a  head  for  subsistence,  in  money. 

By  article  9  the  improvements  of  individuals  and  ferries  were  to  be 
valued  and  paid  for.  By  article  10  certain  sums  were  to  be  invested 
as  national  funds,  certain  debts  and  claims  against  the  Cherokee  Na- 
tion paid,  and  $300,000  set  apart  for  spoliation  claims.  And  by  arti- 
cle 15  the  expenses  of  removal  and  subsistence,  and  the  amount  of 
claims  for  spoliations,  were  to  be  paid  out  of  the  $5,000,000  ;  and, 
after  deducting  them,  and  the  amounts  paid  for  improvements,  ferries, 
debts  of  the  nation,  &c.,  the  balance  was  to  be  equally  divided  among 
all  the  people  belonging  to  the  Cherokee  nation  east,  according  to 
the  census  just  then  completed. 

Which  articles  8  and  15  were  intended  to  be  conditional  and  con- 
tingent, to  a  certain  extent,  in  this  :  that  if  the  Senate  should  decide 
that  the  $5,000,000  was  intended  by  the  award  to  be  the  price  of  the 
lands  only,  then  the  8th  article  stood  unaffected  by  the  15th,  and  the 
United  States  were  bound,  over  and  above  the  $5,000,000,  to  pay 
the  spoliation  claims  and  to  remove  and  subsist  the  Indians,  or  pay 
the  commutation  prices  of  $20,  and  $33  33  for  each,  according  to  the 
8th  article  of  the  treaty  of  1828,  and  the  8th  article  of  that  of  1835  in 
question  ;  by  virtue  of  the  provision  of  tlie  17th  article  of  the  latter, 
by  which  all  stipulations  in  former  treaties,  not  superseded  or  annulled 
by  it,  were  to  continue  in  full  force  and  virtue.  But  if  the  Senate 
should  decide  that  the  $5,000,000  were  intended  to  cover  and  include 
not  the  price  of  the  land  alone,  but  also  the  amount  of  claims  for  spoli- 
ations, and  the  expenses  of  removal  and  subsistence,  then  the  15th 
article  stood  in  full  and  qualified  the  8th. 

That  on  the  29tli  of  February^  1836,  Senators  Cuthbert  and  King, 
of  Georgia,  and  King,  of  Alabama,  who  had  voted  for  the  award, 


30  J.   K     ROGERS. 

stated  to  the  President,  in  writing,  that  the  Senate  did  not  intend  that 
the  allowance  for  spoliations  or  expenses  of  removal  should  be  deducted 
from  the  sum  of  |5, 000, 0^0  recommended  to  be  offered  to  the  Chero- 
kees  as  the  price  of  their  territory. 

That  supplementary  articles  to  the  treaty  were  signed  on  the  1st  of 
March,  1836,  by  the  2d  article  of  which  it  was  agreed  that  it  should 
be  submitted  to  the  Senate  to  decide  whether  that  sum  was  intended 
to  include  expenses  of  removing  the  Cherokees  or  the  amount  of  their 
spoliation  claims ;  and  if  they  should  decide  that  it  was  not,  then 
such  further  provision  should  be  made  for  those  purposes  as  to  the 
Senate  should  seem  just ;  and,  by  the  3d  article,  in  the  event  of  such 
decision,  $600,000  was  to  be  allowed  the  Cherokees,  to  include  ex- 
penses of  removal,  and  their  claims,  &c.,  and  aoy  surplus  to  be  paid 
over  to  their  education  fund. 

That  the  Senate  decided  that  the  |5, 000, 000  was  the  price  of  the 
lands  alone,  and  did  not  include  the  spoliation  claims  nor  expenses  of 
removal ;  the  evidence  of  which  decision  was,  that  they  ratified  said 
treaty  and  supplement,  including  said  allowance  of  |i300,000  ;  thus 
agreeing  to  pay  that  as  a  consequence  of  an  acknowledged  legal  obliga- 
tion, the  question  submitted  being,  in  reality,  whether  the  |5, 000, 000 
was  not  the  price  of  the  land  and  improvements  alone,  and  not  whether 
it  did  or  did  not  include  any  particular  charge  or  item  of  expenditure ; 
and  from  the  decision  that  it  was  it  resulted,  as  a  corollary,  that  it  did 
not  include  the  spoliation  claims,  expenses  of  removal,  or  subsistence. 

That  when  and  before  the  Senate  so  decided,  the  letter  of  Senators 
King,  King,  and  Cuthbert  was  before  it,  as  also  all  the  correspond- 
ence and  negotiations  which  preceded  and  led  to  the  treaty  and  sup- 
plement ;  and  the  views  of  the  Cherokees  and  the  position  assumed  by 
them  were  well  understood  by  the  Senate. 

That  in  the  schedule  to  the  original  articles  signed  at  Washington 
and  sent  out  to  the  Cherokees,  the  expenses  of  removal  were  estimated 
at  $255,000,  claims  and  spoliations  at  $250,000,  and  blankets,  rifles, 
and  kettles  at  $80,000  ;  or,  together,  $585,000  ;  {Doc.  No.  286,  Eo. 
of  Beps.,  \st  SPSS.  2itJi  Cong.,  p.  39;)  so  that  it  was  supposed  by  the 
Senate  that,  in  appropriating  $600,000  to  meet  these  expenditures^ 
they  appropriated  a  just  and  sufficient  sum  to  meet  the  legal  obliga- 
tion which  was  decided  to  rest  upon  the  United  States  ;  and  that 
appropriation  or  allowance  was  in  nowise  intended  to  limit  the  extent 
of  that  plenary  legal  obligation. 

That  this  question,  thus  decided  in  favor  of  the  positions  assumed 
from  the  beginning  by  the  Cherokees,  was  again  so  decided  by  the 
whole  legislative  power  of  the  United  States,  and  their  obligation  to 
remove  and  subsist  them  broadly  and  fully  recognized  and  acknow- 
ledged in  the  year  1838  ;  in  which  year  the  Cherokees  claimed,  as  a 
matter  of  right,  under  the  treaty  of  1835  and  the  supplement  of  1836, 
that  the  expenses  of  their  removal  and  subsistence  ought  to  be  defrayed 
by  the  United  States  ;  and  the  Secretary  of  War,  when  no  new  treaty 
had  been  made,  nor  even  any  proposition  for  a  treaty  entertained,  de- 
cided that  the  position  assumed  by  the  Cherokees  was  correct,  and 
proposed  to  Congress  to  make  such  allowances  to  the  Cherokees  as 
were  believed  to  have  been  originally  intended  by  the  Senate  ;  and, 


J.    K.   ROGERS.  31 

accordingly,  estimated  that  to  remove  every  remaining  Cherokee,  at 
$30  a  head,  it  would  he  necessary  to  appropriate,  over  and  ahove  an 
amount  on  hand,  |435,900  ;  and  that  to  subsist  every  one,  removed 
and  unremoved,  for  a  year,  it  would  be  necessary  to  appropriate 
$611,105  55,  being  for  18,335  Indians,  at  |33  33  a  head;  which 
estimates  being  submitted  to  Congress,  the  conclusions  of  the  Secre- 
tary were  adopted  and  the  legal  obligation  of  the  United  States  recog- 
nized^ and,  by  act  of  12th  June,  1838,  the  sum  of  $1,047,067  (being 
for  removals,  as  estimated,  $435,900,  and  for  subsistence  for  18,335 
persons,  at  $33  33|  a  head,  $611,167)  was  appropriated,  in  full,  for 
all  objects  specified  in  the  3d  article  of  the  treaty  of  1835,  ''and  for 
the  further  object  of  aiding  in  the  subsistence  of  the  Indians  for  one 
year  after  their  removal  west.  And,  to  recognize  and  admit,  in  the 
amplest  terms,  the  legal  obligation  as  a  consequence  whereof  this 
appropriation  was  made,  it  was  expressly  provided  that  no  part  of 
that  sum  should  be  deducted  from  the  $5,000,000  stipulated  to  be  paid 
to  the  Cherokees  by  that  treaty. 

That,  by  the  12th  article  of  the  treaty  of  1835,  it  had  been  stipu- 
lated that  those  individuals  and  families  of  the  Cherokee  nation  who 
were  averse  to  removing  and  desired  to  become  citizens  of  the  States 
where  they  resided,  should  be  entitled  "to  receive  their  due  portion 
of  all  the  personal  benefits  accruing  under  this  treaty  for  their  claims, 
improvements,  and  per  capita j"  as  soon  as  an  appropriation  should 
be  made  for  the  treaty. 

That  on  the  6th  of  August,  1846,  (9  Stat,  at  Large,  871,)  a  treaty 
was  made  between  the  United  States  and  the  Eoss  or  government 
party,  the  treaty  party,  and  the  old  settlers  of  the  Cherokees,  to  which 
the  Cherokees  still  east  of  the  Mississippi  were  no  parties;  and  it  was 
expressly  agreed  by  article  10,  that  nothing  therein  contained  should 
be  so  construed  as  in  any  manner  to  take  away  or  abridge  any  rights 
or  claims  which  they  had,  or  might  have,  under  the  treaty  of  1835 
and  the  supplement  of  1836. 

By  article  3  it  was  admitted  by  the  United  States  that  the  spolia- 
tion claims  luere  never  jicstly  chargeable  to  the  $5,000,000,  but  were  to 
be  paid  by  the  United  States  ;  and  the  latter  agreed  to  reimburse  to 
said  fund  the  amount  theref:)r  improperly  charged  to  it,  and  certain 
other  sums  improperly  charged  to  it,  including  sums  paid  agents  of 
the  government ;  and  that  the  amounts  so  reimbursed  should  tbrm 
part  of  the  amount  to  be  distributed  under  the  9th  article  of  the  new 
treaty. 

To  ascertain  the  amount  due  the  old  settlers,  (who  had  emigrated 
prior  to  the  treaty  of  1835,)  article  4  provided  that  they  should  receive 
one-third  of  the  balance  found,  by  deducting  from  the  sum  of  .$5,600,000 
all  the  investments  and  expenditures  enumerated  in  the  15th  article  of 
the  treaty  of  1835,  (excluding  all  extravagant  and  improper  expendi- 
ture,) estimating  removal  and  subsistence  at  $53  33  a  head.  These 
western  Cherokees  claimed  that  the  amount  of  spoliation  claims,  and 
expenses  of  removal  and  subsistence,  ought  not  to  be  charged  against 
the  $5,600,000,  to  ascertain  the  balance  which  they  were  to  share  ; 
and  article  12  provided  for  submitting  that  question,  as  to  them,  to  the 


32  ■  J.    K.    ROGERS. 

Senate  ;  but  that  body  struck  out  the  article,  thus  making  no  decision, 
when,  on  the  8th  of  August,  1846,  the  treaty  was  ratified. 

But  as  to  the  other  parties  interested,  a  different  arrangement  was 
made.  By  article  9,  the  United  States  agreed  to  make  a  fair  a,nd  just 
settlement  of  all  moneys  due  the  Cherokees,  and  subject  to  the  per 
capita  division,  under  the  treaty  of  1835  ;  such  settlement  exhibiting 
all  moneys  properly  expended  under  that  treaty,  and  embracing  all 
sums  paid  for  improvements,  ferries,  spoliations,  removal  and  sub- 
sistence, and  commutation  therefor,  debts  and  claims  on  the  Cherokee 
nation,  the  800,000  acres  sold  to  them  west  of  Missouri,  the  invest- 
ments in  general  fund,  and  all  sums  which  might  thereafter  be  pro- 
perly allowed  and  paid  under  the  treaty  of  1835  ;  the  aggregate  of  all 
which  should  be  deducted  from  the  sum  of  |6, 64 7, 067,  and  the  balance 
be  paid  per  capita  in  eq^ual  amounts,  to  all  the  Clierokees,  their  repre- 
sentatives, &Q,.,  residing  east  of  the  Mississippi,  at  the  date  of  the 
treaty  of  1835,  and  the  supplement  of  1836. 

But  this  article  was  qualified  by  article  11,  which  provided  that  the 
question,  whether  the  one  year's  subsistence  was  properly  chargeable 
against  the  |5, 000, 000,  should  be  submitted  to  the  Senate  for  its 
decision,  who  should  decide  whether  the  subsistence  should  be  borne 
by  the  United  States  or  by  the  Cherokee  funds  ;  and,  if  by  the  Chero- 
kees, whether  it  should  be  charged  at  more  than  $33  33  a  head  ;  and 
also  the  question,  whether  the  Cherokee  nation  should  be  allowed 
interest  on  whatever  sum  should  be  found  to  be  due  the  nation,  and 
from  what  date,  and  at  what  rate  per  annum. 

Your  petitioner,  for  himself,  and  the  other  persons  aforesaid,  repre- 
sents, that  the  Senate  had  already  decided,  in  1836,  that  the  spoliation 
claims  and  expenses  of  removal  were  not  to  be  paid  out  of  the 
$5,000,000.  This  decision  being  final  against  the  United  States,  and 
a  mere  corollary  from  the  real  decision,  upon  the  real  true  point  sub- 
mitted, which  was,  whether  the  $5,000,000  was  or  was  not  the  price 
of  the  lands  alone;  that  on  the  12th  day  of  June,  1838,  the  Congress 
and  the  President,  by  the  act  that  day  approved,  had  solemnly  decided 
that  the  United  States  were  bound  to  pay  the  whole  expenses  ot  removal 
and  subsistence,  by  appropriating  what  it  was  estimated  would  cover 
the  ivhole,  and  by  providing  that  the  amount  thould  not  be  charged 
against  the  $5,000,000  ;  and  that,  by  the  treaty  of  1846,  no  neio  ques- 
tion, but  the  same  question,  under  the  treaty  and  supplement  of 
1835-'36,  was  agram  submitted  to  the  Senate;  and  it  was  made  the 
judge,  selected  by  the  United  States  to  decide  this  question  against  or 
in  favor  of  them. 

On  the  7th  of  August,  1848,  by  act  of  that  date,  (9  Stat,  at  Large, 
339,)  the  proper  accounting  officers  of  the  treasury  were  authorized 
and  required  to  make  a  fair  and  just  statement  of  the  claims  of  the 
Cherokee  nation,  according  to  the  principles  established  by  the  treaty 
of  1846. 

And  afterwards  the  Senate  referred  to  the  Committee  on  Indian 
Affairs  the  questions  submitted  to  itself  by  the  treaty  of  1846.  The 
committee  decided  that  the  charge  for  subsistence  should  be  borne  by 
the  United  States.  They  based  their  decision,  not  upon  the  face  of 
the  treaty  of  1835,  and  the  supplement,  but  upon  the  action  of  Con- 


J.    K.    ROGERS*  33 

gress  in  1838,  holding  that  action  to  be  a  clear  legislative  affirmance 
of  the  terms  oiFered  by  the  Cherokees,  and  acceded  to  by  the  Secretary 
of  War,  and  a  new  consideration  offered  the  Indians  to  induce  them 
to  abide  by  the  terms  of  the  treaty.  And  the  committee  held  that 
$800,528  31  having  been  paid  for  subsistence,  and  charged  against 
the  fund,  while  $611,105  55  only  had  been  appropriated  for  that  pur- 
pose by  the  act  of  1838,  the  balance,  or  $189,422  76  was  still  due  by 
the  United  States. 

Your  petitioner  submits  that,  while  the  conclusions  of  the  committee 
were  right,  the  grounds  of  these  conclusions  involved  some  error.  He 
respectfully  submits  that  there  is  really  no  ambiguity  in  the  treaty  of 
1835,  nor  was  there  ever  any  variety  of  construction  placed  upon  it, 
because  its  construction  was  never  a  question  ;  that  after  the  Senate 
decided  the  question  submitted  to  it  in  1836,  there  should  no  longer 
have  been  any  question  that  the  United  States  were  bound  to  subsist 
the  Indians,  because  their  obligation  to  do  thai  stood  on  precisely  the 
same  ground  as  their  obligation  to  remove  them,  which  the  Senate 
then  expressly  decided  they  were  bound  to  do,  for  the  question  sub- 
mitted was,  whether  the  $5,000,000  was  the  price  of  the  land  alone; 
and  the  award  was,  as  it  was  bound  to  be,  in  accordance  ivith  the  sub- 
mission ;  and  of  that  decision,  as  made,  that  the  United  States  must 
remove,  and  that  they  must  suhsisti\vQ  Indians,  were  equally  corollaries. 

And  so  it  was  decided  by  the  act  of  12th  June,  1838.  For  he  re- 
spectfully submits  that  the  sum  allowed  thereby  was  no  neiu  contract 
nor  new  consideration.  For  he  avers  that  the  Cherokees  never  asked 
any  new  favor,  grace,  or  concession  ;  but  always  stood  upon  the  letter 
and  spirit  of  the  award,  and  claimed  that,  and  the  stipulations  to  re- 
move and  subsist  them,  contained  in  the  treaty  of  1828,  and  no  more 
and  no  less — in  1850  as  in  1836  ;  and  Mr.  Poinsett,  in  deciding  (a  de- 
cision affirmed  by  Congress)  that  the  United  States  ought  to  remove 
and  subsist  thi  m,  expressly  says  that  there  had  been  not  only  no  new 
treaty,  but  no  propositions  even  entertained  for  a  new  treaty. 

But  your  petitioner,  having  said  this  by  way  of  protestation  against 
the  conclusion  that  he  assents  to  the  argument  of  the  committee,  re- 
lies upon  their  decision  alone  as  embodied  in  the  resolution  reported 
by  them,  and  which  resolution,  adopted  by  the  Senate,  became  its 
judgment  upon  the  question  submitted — final  and  forever  conclusive  as 
against  the  United  States,  and  esto^^ping  them  ever  again  to  deny  their 
liability  ;  and  he  submits  that  it  might  be  unjust  to  the  Senate  to  pre- 
sume that  it  adopted  i\ie  reasoning ,  and  argument,  and  grounds  of  judg- 
ment of  the  committee,  and  so  he  pleads  and  relies  u^ion  the  judgment 
itself. 

And  he  further  represents  that  the  question  submitted  to  the  Senate 
was,  ''whether  the  amount  expended  for  the  one  year's  subsistence 
was  or  was  not  properly  chargeable  to  the  treaty  fund,  and  whether  it 
should  be  borne  by  the  United  States  or  the  Cherokee  funds  ;"  and 
the  decision  on  that  question  was_,  that,  under  the  circumstances,  that 
amount  (so  far  as  unprovided  for  by  ap})ropriation)  "  tvas  improperly 
charged"  to  the  treaty  fund.  In  accordance  with  which  the  act  of 
Congress  of  September  30,  1850,  (9  Stat,  at  Large,  556,)  appropriated 
$189,422  76  "  for  additional  amount  for  expenses  paid  for  subsistence, 
Mis.  Doc.  94 3 


34  J.   K.   ROGEES. 

and  improperly  charged  io  the  treaty  fund,  under  Senate  awaid  of  5tli 
September  1850,  and  lltli  article  of  treaty  of  1846." 

And  he  further  lepresents  that  that  decision  was  made  in  favor  of 
the  eastern  Cherokees,  including  himself,  as  well  as  of  those  who  had 
emigrated,  because  the  former  were  entitled  to  receive  their  proper 
share  of  the  balance  to  be  ascertained  by  the  accounting  officers  ;  which 
balance  was  to  be  increased  or  diminished,  according  as  the  Senate 
should  decide,  one  way  or  the  other.  And,  also,  that  even  if  the  act 
ot  1838  hoxl  been,  as  the  Senate  committee  held  it,  a  new  concession, 
instead  of  being,  as  Mr.  Poinsett  held,  and  as  Congress,  by  its  action, 
recognized,  merely  carrying  out  the  original  intention  of  the  Senate, 
still  it  was  as  much  a  concession  to  and  in  favor  of  himself  and  those 
for  whom  he  petitions  here,  as  for  those  who  decided  to  emigrate. 

He  further  represents  that  the  accounting  officers  charged  against 
the  said  sum  of  $6,647,067 — for  improvements,  |1, 540, 572  27;  for 
ferries,  $159,572  12  ;  for  spoliations,  $264,894  09  ;  for  removal  and 
subsistence,  $2,823,192  93  ;  for  physicians,  matrons,  &c.,  $32,003  91  ; 
for  government  agents,  &c.,  $96,999  42,  (which  amount  the  Senate 
decided  was  for  improper  and  extravagant  expenditures,  and  must  be 
borne  by  the  United  States  ;)  for  national  debts,  $18,062  06  ;  claims  of 
XTnited  States  citizens,  $61,073  49;  compensation  of  Cherokee  com- 
mittee, $22,212  76;  value  of  land  west  of  Missouri,  $500,000;  and 
amountinvested as generalfund,  $500,880;  making  inall$6, 019, 463  05; 
leaving  a  balance  due  the  Cherokees,  according  to  the  9th  article  of 
the  treaty  of  1846,  of  $627,603  95  ;  to  which,  adding  the  sum  of 
$96,999  42,  reject,ed  as  aforesaid  by  the  Senate  (the  judge  in  that 
behalf)  as  improperly  charged,  there  was  found  due  the  Cherokees 
$724,603  37,  and,  adding  to  that  $189,422  76,  found  due  on  sub- 
sistence account,  the  aggregate  sum  to  be  distributed  pjer  capita  was 
found  to  be  $914,626  13,  which  was  appropriated  and  2:)aid  in  1850  ; 
and  of  it  your  petitioner,  and  those  for  whom  he  appears  and  peti- 
tions, received  their  share. 

Your  petitioner  further  represents  that  the  provision  in  the  tieaty 
of  1S28,  by  which  the  United  States  were  bound  to  remove  and  subsist 
the  Cherokees  who  would  remove,  could  not  be  abrogated  and  re- 
scinded, unless  by  the  consent  of  both  contracting  parties  ;  that  the 
award  of  the  Senate,  if  it  had  been  binding  on  the  Cherokees,  did  not 
do  so ;  and  that  by  the  letter  of  that  award,  which,  being  entirely  plain, 
admitted  of  no  construction,  the  offer  made  to  the  Cherokees  was  simply 
to  give  them  $5, 000, 000  for  their  lands,  leaving  the  eighth  article  of  the 
treaty  of  18  .:8  untouched  ;  that  when  the  Cherokees  waived  their  strict 
legal  rights  to  insist  on  the  letter  of  that  award  and  of  the  treaty  of 
1828,  and  submitted  to  the  Senate  to  say  whether  its  letter  expressed 
their  intention,  and  when  that  body  decided  that  it  did  so,  there  was  a 
final  decision  against  the  United  States  as  to  spoliation  claims,  removal, 
and  subsistence  ;  of  which  decision,  those  of  Congress  in  1838  and  of 
the  Senate  in  1850  were  but  reiterations  and  repetitions. 

And  so  he  submits  that  in  the  account  against  the  Cherokees,  as 
made  out  under  the  treaty  of  18'{5-'36,  by  the  accounting  officers,  even 
when  corrected  by  the  Senate  committee,  it  was  erroneous  to  charge 
against  the  $5,000,000  the  amount  of  spoliations,  and  the  expenses  of 


J    K.    ROGERS.  35 

removal  and  subsistence  ;  and  he  submits  that,  in  stating  the  account, 
the  sum  of  $5,000,000,  the  price  of  the  Lands,  shouhl  have  been  kept 
entirely  se^Jarate  from  the  amounts  appropriated  for  other  objects  ;  and 
that  against  that  sum  should  have  been  charged,  only,  the  value  of 
improvements  and  ferries,  the  debts  of,  and  claims  against,  the  Chero- 
kees  ;  the  price  of  the  land  west  of  Missouri,  and  the  amount  invested 
as  the  general  fund  of  the  nation  ;  and  that,  deducting  these  only,  the 
balance  was  the  proper  amount  to  be  distributed  per  capita  ;  that  no 
2Kirf  of  the  charges  for  removal  and  subsistence,  or  of  the  amount  of 
spoliation  claims,  should  have  been  taken  into  account ;  that  the  com- 
pensation of  the  Cherokee  committee  should  not  have  been  included, 
because,  they  being  agents  employed  by  the  Cherokees,  the  United 
States  had  no  right  or  business  to  fix  and  pay  their  compensation,  and 
if  they  chose  voluntarily  to  do  so,  could  not  demand  repayment  thereof 
from  the  Cherokees  ;  because  the  treaty  of  1 835-' 36,  contained  no  pro- 
vision charging  their  compensation  upon  the  price  of  the  land,  or  pro- 
viding for  its  payment  in  any  way  ;  and  because  it  was  a  matter  with 
which  the  eastern  Cherokees  had  no  manner  of  concern,  nor  were  the 
services  of  the  committee  at  all  rendered  to  them;  and  therefore  their 
compensation  should  not  be  charged  against  the  price  of  the  land,  be- 
cause -by  that  means  the  eastern  Clierokees  would  be  compelled,  in 
part,  to  pay  it ;  and  that  the  subsistence  furnished  those  who  had 
emigrated  after  the  first  year  was  not  furnished  under  or  in  conse- 
quence of  any  provision  of  the  treaty  of  1835-'36,  nor  had  the  eastern 
Cherokees  anything  to  do  with  it,  but  it  was  furnished  to  individuals 
who  had  no  power  to  agree,  nor  had  the  nation  west  any  power  to 
agree  that  it  should  be  paid  out  of  the  price  of  the  land,  and  so  the 
eastern  Cherokees  be  compelled  to  contribute  to  the  support  of  persons 
other  than  themselves. 

Your  petitioner  farther  represents  that  in  the  account,  as  made  out 
by  the  accounting  officers,  the  amount  invested  in  the  general  fund  is 
stated  to  be  $500,880,  whereas  the  treaty  of  1835-'36  authorized  the 
investment  of  $500,000  only  ;  and  no  more  could,  for  such  invest- 
ment be,  under  the  15th  article  of  the  treaty,  deducted  from  the  price 
of  the  land,  to  ascertain  the  balance  to  be  divided  per  capita ;  and 
therefore  he  claims  that  said  sum  of  $880  shall  not  be  charged  in 
making  up  the  account. 

Your  petitioner  further  represents  that  the  Senate  committee,  to 
ascertain  the  amount  still  due  the  old  settlers,  deducted  from  the  sum 
of  $5,600,000  the  items  specified  in  the  15th  article  of  the  treaty  of 
1835,  calculating  removal  and  subsistence  at  $53  33^5-  a  head,  for 
18,026  persons,  including  also  spoliations  and  the  compensation  of 
the  Cherokee  committee ;  all  which  deducted  left  a  balance  of 
$1,571,346  55  ;  one-third  of  which,  or  $523,782  18,  they  allowed 
the  old  settlers  or  western  Cherokees,  and  the  same  was  appropriated 
and  paid  them. 

And  the  accoiinting  officers  having  found  a  balance  due  the  Chero- 
kees of  $627,603  95,  the  committee  added  to  that  the  sum  of 
$96,999  31,  expenses  of  agents,  &c.,  improperly  charged  to  the 
Cherokees,  and  so  stated  the  true  balance  due  the  Cherokees  to  be 
$724,603  37. 


36  •  J.   K    ROGEES. 

Then  deciding  that  subsistence  was  improperly  charged  against  the 
treaty  fund,  they  said  that  the  entire  expense  of  removal  and  subsist- 
ence amounted  to  $2,952,196  26,  of  which  |972,844  78  was  ex- 
pended for  subsistence  ;  that,  of  that,  $172,316  47  was  furnished  the 
Indians  after  the  first  year,  on  the  understanding  that  it  was  to  be 
deducted  out  of  the  moneys  due  them  under  the  treaty  ;  deducting 
which,  there  remained  $800,528  31  paid  for  subsistence,  and  charged 
to  the  aggregate  fund  ;  that  of  this  sum,  the  United  States^  in  ISoSy 
provided  for  the  payment  of  $611,105  55,  leaving  unprovided  for  the 
sum  of  $189,422  76  improperly  charged  against  the  treaty  fund  ; 
adding  which  to  the  balance  of  $724,603  37,  they  obtained  the  aggre- 
gate of  $914,026  13,  as  due  the  Cherokees  ;  which  sum  was  appro- 
priated and  paid. 

Your  petitioner  represents  that  these  settlements  were  made  upon 
bases  which,  though  incorrect,  and  greatly  to  the  loss  and  injury  of 
the  old  settlers  and  other  parties  to  the  treaty  of  1846,  had  been  con- 
sented to  by  them  all,  and  so  settled  the  whole  matter  as  far  as  they 
were  concerned,  though  they  lost  largely  thereby  ;  but  that  he  and 
those  for  whom  and  himself  he  petitions  were  in  no  wise  bound  by 
their  agreements,  nor  concluded  or  aifected  by  said  settlements  ;  into 
the  merits  of  which,  therefore,  he  does  not  inquire. 

But,  conscious  that  he  and  those  for  whom  he  now  petitions  were 
entitled  still  to  a  large  amount  under  the  treaty  of  1835-'36,  he  peti- 
tioned Congress  for  relief  in  the  premises,  by  petition  presented  to  the 
House  of  Eepresentatives,  and  there  referred  to  the  Committee  on  In- 
dian AiFairs ;  basing  the  claim  upon  the  settlement  made  with  the  old 
settlers  as  sufficiently  favorable  to  the  United  States,  and  supposing 
that  Congress  v/ould  be  willing  to  settle  with  them  on  that  basis,  and 
claiming  thereunder  as  follows,  viz.,  tliat  the  Senate  had  found  a 
balance  of  $1,571,346  55  due  upon  the  basis  of  the  4th  article  of  the 
treaty  of  1846,  as  balance  of  the  sum  of  $5,600,000  appropriated  by 
the  treaty  of  1835-'36,  and  of  which  they  allowed  the  old  settlers  one- 
third  ;  that,  deducting  from  this  balance  of  $1,571,346  55  the  sum 
of  $914,026  13  paid  in  1850,  and  adding  $22,212  76,  compensation 
of  the  Cherokee  committee,  and  $25,414  09 — an  amount  greater 
than  the  $600,000  provided  for  removal  and  spoliations  in  the  third 
suj)plemental  article,  and  improperly  deducted — there  was  obtained 
$704,647  16  as  the  balance,  of  which  the  eastern  Cherokees  were 
entitled  to  their  proportionate  share. 

And  a  census  having  been  taken  in  the  year  1851  of  all  the  Chero- 
kees entitled  to  share  per  capita  under  the  treaty  of  1846,  and  the 
whole  number,  east  and  west,  having  been  found  to  be  16,231,  and 
that  of  the  eastern  Cherokees  2,133,  the  above  balance  to  be  divided 
was,  for  each  of  the  16,231  persons,  $43  43,  or,  for  the  2,133  east- 
ern Cherokees,  $92,625  19,  on  which  interest  was  claimed,  at  5  per 
cent,  per  annum,  from  the  12th  day  of  June,  1838,  until  paid. 

In  favor  of  the  claim  so  stated,  a  report  was  made  by  the  Hon.  Mr, 
Caldwell,  of  North  Carolina,  for  payment  of  principal  and  interest, 
which  v/as  unanimously  adopted  by  the  committee  ;  but  it  not  being 
called  for  reports  at  that  session,  the  report  was  not  submitted  to  the 
House. 


J.    K.    ROGERS.  37 

At  tlie  first  session  of  the  83d  Congress,  tlie  claim,  in  the  s^me 
shape,  was  again  presented  to  the  House,  and  referred  to  the  Commit- 
tee on  Indian  Affairs ;  and  on  the  20th  of  March,  1854,  the  Hon.  Mr. 
Grow,  from  that  committee,  made  a  report  in  favor  of  paying  the 
principal,  with  interest,  from  December  14,  1852  ;  and  he  offered  an 
amendment  to  the  general  Indian  appropriation  bill,  directing  its 
payment,  which  passed  in  committee  of  the  whole  by  a  considerable 
majority,  but  was  lost  in  the  House. 

The  claim  was  afterwards,  in  the  same  shape,  presented  in  the  Sen- 
ate, and  referred  to  the  Committee  on  Indian  Affairs,  by  whom  the 
report  of  the  Hon.  Mr.  Grow  was  adopted,  and  the  Hon.  Mr.  Sebas- 
tian offered  an  amendment  to  the  general  Indian  appropriation  bill 
for  its  payment,  which  the  Senate  unanimously  adopted ;  the  bill  was 
returned  to  the  House,  and  it  refused  to  concur  in  the  amendment ; 
the  Senate  insisted  on  the  amendment,  and  it  went  to  a  committee  of 
conference,  where  it  v/as  finally  lost. 

Your  petitioner  also  states  that  on  the  5th  of  June,  1854,  the  Hon. 
Mr.  Hunter,  chairman  of  the  Committee  of  Ways  and  Means,  ad- 
dressed a  letter  to  the  Secretary  of  the  Interior,  asking  his  opinion  as 
to  the  merits  of  the  claim.  That  letter  was  referred  to  the  Commis- 
sioner of  Indian  Affairs  for  a  report,  and,  on  the  20th  of  the  same 
month,  the  Secretary  transmitted  the  report  of  the  Commissioner,  in 
which  he  declined  to  express  an  opinion,  on  the  ground  that  it  might 
be  deemed  discourteous  to  the  Senate  and  the  Committee  on  Indian 
Affairs  of  the  House,  both  of  which  had  already  passed  judgment  on 
the  claim. 

At  the  2d  session  of  the  same  Congress  a  supplemental  memorial 
was  presented  in  the  House,  and  referred  to  the  Committee  on  Indian 
Affairs,  which,  under  a  joint  rule,  resumed  the  consideration  of  the 
claim  as  unfinished  business,  adopted  the  former  report  of  the  Hon. 
Mr.  Grow,  and  instructed  him  to  present  it  to  the  House. 

And  your  petitioner  herewith  files  copies  of  the  said  memorials, 
and  of  the  report  of  the  Hon.  Mr.  Grow,  including  the  report  of  Mr. 
Senator  Sebastian,  and  prays  that  they  may  be  taken  and  considered 
as  parts  of  this  petition. 

And  the  petiiioner  further  adds,  that  on  the  11th  of  January,  1855, 
the  Commissioner  of  Indian  Affairs  gave  the  Hon.  Chairman  of  the 
Committee  of  Ways  and  Means  his  opinion  against  this  claim,  on 
grounds  utterly  untenable,  and  an  entirely  mistaken  view  of  the 
nature  and  basis  of  the  claim,  and  of  the  facts  on  which  it  depended. 

The  House  report  of  1854  thus  states  the  claim  of  the  eastern 
Cherokees : 

Amount  to  be  paid  under  treaty  of  1835 $5,600,000  00 

Deductions  ($4,028,653  45— $22,212  76) 4,006,440  69 

Leaves  for  per  capita  distribution 1,593,559  31 

Whereof  the  Cherokees  east  have  received  their  pro- 
portion o£. ...,.,.....,..,,.,,. 914,026  13 

679,533  18 


38  J.   K.   ROGEES. 

.      Brou gilt  forward |679,533  18 

Then  the  committee  says  that  no  part  of  the  amount  of 
spoliation  claims  or  expenses  of  removal  could  he 
charged  to  the  Cherokees  ;  $600,000  was  appropri- 
ated for  that ;  hut  the  amount  really  was  : 

Eemovals |360,520  00 

Spoliations 264,884  09 

625,414  09 
So    that    there    was    improperly   deducted  from   the 

$5,000,000 25,414  09 

To  he  divided  per  capita 704,947  27 

Whole  numher  entitled,  16,231,  or  |43  43  per  head. 

No.  of  eastern  Cherokees,   2,133,  or   at  |43  43  each         92,625  19 


Tour  petitioner  suhmits  that  this  is  evidently  wrong  ;  for  Congress 
afterwards  agreed  that  the  United  States  ought  to  pay,  and  provided 
for  paying  of,  the  above  deductions,  and  for  expenses  of  removal  and 
subsistence,  $1,047,067.  Of  this  amount,  the  eastern  Cherokees  were 
equally  entitled  to  their  proper  share.  It  went  to  reduce  by  so  much 
the  charges  against  the  price  of  their  land.  Therefore,  on  the  princi- 
ples of  the  House  report,  the  account  would  be  stated  thus  : 

Amount  to  be  paid  under  treaty  of  1835  and  act  of  1838,  $6,647,067  00 
Deductions,  as  per  House  report , 4,006,440  69 

Leaves  for  per  cap^7a  distribution., 2,640,626  i.l 

Afterwards  appropriated  and  distributed..,. 914,026  13 

To  be  divided  per  capita 1,726,600  18 

Whole  number  entitled,  16,231,  or  $106  38  each. 

No.  of  eastern  Cherokees,  2,133,  at  $106  38  each  is...        226,898  87 


But  your  petitioner  does  not  contend  for  this,  because  he  admits  that 
the  basis  of  settlement  with  the  old  settlers,  assumed  in  the  treaty  of 
1846,  was  no  proper  basis  for  a  settlement  with  the  eastern  Cherokees, 
but  proceeded  upon  views  peculiarly  applying  to  the  old  settlers  alone. 

Your  petitioner  submits  that  the  Senate  and  Congress  having,  in 
favor  of  the  eastern  as  well  as  the  western  Cherokees,  admitted  the 
liability  of  the  United  States  to  pay  the  year's  subsistence,  and  hav- 
ing in  fact  paid  the  whole,  by  the  payment,  first,  of  $611,167  in  1838, 
and  $189,422  76  in  1850,  it  cannot  be  claimed  that  any  portion 
thereof  should  be  charged  against  the  $5,000,000,  in  settling  with 
your  petitioner  and  those  whom  he  represents. 

But,  if  the  subsistence  we7X  properly  so  chargeable,  then  the  account 
would  stand  thus : 


J.    K.    ROGERS.  39 

Price  agreed  for  land $5,000,000  00 

Proper  debts,  as  per  preceding  account...  $2^779,279  94 
Subsistence,  18,026  Indians,  at  .$33^  a 

head 600,866  66 

Paid  in  1850 914,026  13 

4,294,172  73 


705,327  27 
Share  of  eastern  Cherokees,  as   2,133:   16,231,  or 92,756  42 


So  that,  even  charging  the  commutation  price  for  subsistence  to 
the  Cherokees,  there  is  due  to  the  eastern  Cherokees  an  amount  a 
little  larger  than  that  reported  by  the  House  committee  ;  and  he  sub- 
DDits  that  it  cannot  be  disputed  that  the  Senate,  in  1836,  a^.  leasts  de- 
cided that  the  expenses  of  removal  and  the  amount  oi  spoliation  claims 
were  to  be  paid  by  the  United  States  ;  for  they  were  within  the  very 
letter  of  the  submission  to  them  by  the  treaty. 

But  he  respectfully  urges  that  the  decision  also,  in  fact,  included 
the  suhsistence  ;  and  that  if  it  did  not,  the  liability  of  the  United  States 
for  that  existed  under  the  treaty  of  1828,  and  was  decided  by  the  act 
of  June,  1838,  and  by  the  judgment  and  decision  of  the  Senate  in 
1850,  and  by  the  actual  payment  thereof  by  Congress  ;  and  therefore 
he  submits  that  the  account  with  the  eastern  Cherokees  is  properly 
stated  as  follows  : 


Purchase-money  of  land  in  account. 

Price  agreed  to  be  paid.... $5,000,000  00 

To  be  debited  as  follows  : 

1.  For  improvements , $1,540,572  27 

2.  For  ferries. 159,572  12 

3.  For  debts  and  claims  on  the  nation  79,135  55 

4.  For  price  of  land  west  of  Missouri.        500,000  00 

5.  Invested  in  national  fund 500,000  00 

2,779,279  94 

Balance  of  price  due  up  to  1850 2,220,720  06 

Then  paid  by  act  of  September  30,   1850,   (of  which 

sum  the  eastern  Cherokees  received  their  share)...  914,026  13 

Still  due  and  to  be  divided,  (as  to  them) 1,306,693  93 

Whole  number  of  persons  to  share  it  16,231,  §80  hQ^^ 

each . 
Number  of  eastern  Cherokees   2,133,  is,  at  $80  50,V  171,719  29 


And  that  the  United  States  are  still  in  arrears  upon  the  spoliation, 
removal,  and  subsistence  account_,  appears  as  follows  : 


40  .,  J.    K    EOGEES. 


Spoliation,  removal,  and  subsistence  account. 

Eemoval,  subsistence,  and  commutation  therefor $2^823,192  93 

Deduct  subsistence  after  one  year $172,316  47 

Deduct  goods  for  poor  Cherokees 2,765  84 

___  175,082  31 

2,648,110  62 

Physicians,  matrons,  medicines,  &c.,... 32,003  91 

Spoliation  claims 264,894  09 


Appropriated  against  this : 

In  1836.... 600,000  00 

In  1838.,,..,...... 1,047,067  00 

In  1850,........  =  ,,............................  914,626  13 


2,945,008  62 


2,561,693  13 


Balance  unappropriated 383,315  49 


And  so  your  petitioner  represents  that  he  and  those  for  whom  he 
petitions  are  entitled  to  receive  from  the  United  States,  on  account  of 
the  premises  aforesaid,  the  sum  of  |171,719  29,  under  the  treaties  of 
1828  and  1835,  and  the  supplement  of  1836. 

And  he  further  represents  that  the  12th  article  of  the  treaty  of 
1835  provided  that  those  Cherokees  who  determined  to  remain  east  of 
the  Mississippi  should  be  entitled  to  receive  their  due  portion  of  all 
the  peisonal  benefits  accruing  under  that  treaty,  for  their  claims,  im- 
provements and  per  capita,  as  soon  as  an  appropriation  should  be  made 
for  said  treaty. 

That  by  the  treaty  of  1846  it  was  submitted  to  the  Senate  to  decide 
"whether  the  Cherokee  nation  shall  be  allowed  interest  on  whatever 
sum  may  be  found  to  be  due  the  nation,  and  from  what  date,  and  at 
what  rate  per  annum  ;"  upon  which  submission  the  Senate  decided 
"  that  interest,  at  the  rate  of  five  per  cent,  per  annum,  should  be 
allowed  upon  the  sums  found  due  the  eastern  and  western  Cherokees, 
respectively,  from  the  12th  day  of  June,  1838,  until  paid  ;"  which 
was  thus  settled  by  the  Senate  as  a  general  principle,  under  the  treaty 
of  1835-'36. 

Wherefore,  the  petitioner,  for  himself  and  those  in  like  case  with 
himself,  for  whom  he  petitions,  prays  that  this,  their  claim,  being  by 
this  honorable  court  considered,  it  may  be  by  the  court  here  decided 
that  they  are  entitled  to  be  paid  by  the  United  States  the  said  sum  of 
$171,719  29,  with  interest  from  that  date,  at  the  rate  of  five  per  cent, 
per  annum  ;  to  be  divided  equally  among  said  2,133  persons,  or  their 
proper  representatives  ;  and  that  this  court  may  so  report  to  Congress, 
with  the  proper  bill  to  carry  said  decision  and  decree  into  effect. 

JOHNSON  K.  ROGERS, 
For  himself  and  all  other  eastern  Cherokees. 
ALBERT  PIKE, 
Attorney  for  Petitioner. 


J.    Ko    ROGERS. 


IN  THE  COURT  OF  CLAIMS. 

Johnson  K.  Eogers,  for  himself  and  others,  vs.  The  United  States. 
Argument  for  Petitioner. — On  re-hearing. 

The  treaty  of  1828  between  the  United  States  and  the  Cherokees 
provided  that,  to  every  Cherokee  head  of  a  family  who  would  emigrate 
should  be  given  certain  articles,  and  a  just  compensation  for  the  pro- 
perty he  might  abandon  ;  that  the  cost  of  emigration  of  all  should  be 
borne  by  the  United  States,  good  and  suitable  ways  opened,  provi- 
sions procured  for  their  comfort^  accommodation  and  support ;  and 
provisions  for  twelve  months  after  their  arrival  west. — (7  Stat,  at 
La^-ge,  313.)  No  time  was  limited  for  this.  The  treaty  of  1833  (Id., 
416)  vras  supplementary  to  this,  and  left  it  in  full  force. 

It  was  still  in  full  force  in  1835  ;  and  the  treaty  of  1835  (Id.,  486) 
expressly  provides  that  "  all  sti})ulations  in  former  treaties,  which 
have  not  been  superseded  or  annulled  by  this,  shall  continue  in  full 
force  and  virtue." 

On  the  25th  of  February,  1835,  the  Cherokee  delegation  proposed 
to  treat  on  the  basis  of  a  gross  sum  being  allowed  for  all  their  lands, 
the  United  States  paying  "for  a  cession  of  its  territory"  $20,000,000, 
continuing  them  in  possession  for  five  years,  paying  their  losses  caused 
by  the  acts  of  adjoining  States  and  their  citizens,  and  indemnity 
for  certain  other  claims. — (Doc.  No.  286,  Ho.  of  Reps.,  1st  scss.  24tli 
Cong.,  127,  128.) 

These  terms  being  considered  too  extravagant,  they  reminded  the 
President,  on  the  2'7th  February,  1835,  that  he  had  often  said  he 
would  grant  them  as  liberal  terms  as  the  Senate  or  the  friends  of  the 
Indians  would  be  willing  to  allow  ;  and  they  said,  "  we  would  there- 
fore respectfully  ask  that  our  propositions  be  submitted  to  the  Senate 
by  the  President  in  order  that  the  sense  of  that  honorable  body  may 
be  had  on  them.— (Id.,  129.) 

On  the  16tli  February,  1835,  the  Secretary  of  War  had  informed 
them  that  tlie  President  was  "  willing  *  *  *  to  allow  you  a  gross 
sum  for  your  claims,  and  leave  to  your  own  people  all  the  arrange- 
ments for  their  removal  and  ultimate  residence." 

On  the  19th  of  June,  1834,  a  treaty  (which  was  not  ratified)  had 
been  concluded  with  some  of  the  Cherokees,  by  which  it  was  agreed 
to  cede  all  the  national  lands  for  divers  annuities  and  payments^  and 
the  United  States  agreed  to  remove  tlie  Cherokees  and  subsist  them 
for  one  year,  and  also  to  furnish  them  with  rifles,  blankets,  &c.,  under 
the  treaty  of  1828. — (Id.,  134.)  The  improvements  of  the  Indians, 
and  by  a  supplement  their  ferries,  were  to  be  paid  for.  Each  Indian 
emigrating  before  October  15,  1835,  to  receive  $60,  and  each  within  a 
year  thereafter  $25.— (Id.,  136.) 

On  the  28th  February,  1835,  the  delegation  requested  "  that  the 
subject  be  referred  to  the  Senate  for  its  sense  on  the  question,  and  again 
reminded  the  President  that  he  had  often  told  them  that  he  was  dis- 
posed to  treat  them  with  liberal  justice,  and  would  go  as  far  as  the 


^2  .  J.    K.    E    GEES. 

Senate  would  allow  him  in  regard  to  money  matters. — (Id.,  141.) 
And  they  said  that  they  were  prepared  '''  to  abide  the  award  of  the 
sense  of  the  American  Senate"  upon  their  proposition,  and  to  recom- 
mend the  same  for  the  final  determination  of  their  nation. — (Id.) 

On  the  6th  March,  1835,  Mr.  Cass,  Secretary  of  War,  wrote  to  the 
delegation  that,  in  their  letter  of  the  28th,  they  had  stated  their  readi- 
ness to  accept  for  themselves,  and  recommend  their  people  to  accept, 
'''such  a  sum  for  their  claims  east  of  the  Mississippi  river  as  the  Senate 
of  the  United  States  might  deem  just."  Claims  east  of  the  Mississippi 
river  necessarily  meant  their  possessory  rights  to  the  land  and  their 
improvements.  Choses  in  action  have  no  locality.  That  is  the  mean- 
ing of  the  word  claims  (for  which  the  President  was  willing  to  allow 
a  gross  sum)  mentioned  in  Mr.  Cass's  letter  of  16th  February. 

And  the  Secretary  said  :  "  The  Senate  have,  by  a  resolution,  stated 
as  their  opinion  that  '  a  sum  not  exceeding  five  millions  of  dollars 
should  be  paid  to  the  Cherokee  Indians  for  all  their  lands  and  posses- 
sions east  of  the  Mississippi  river.'  " 

Thus  the  Secretary  showed  that  he  understood  claims  and  lands  and 
possessions  to  be  convertible  terms.  Nothing  is  said  about  claims  of 
damages  for  spoliations,  nor  of  removal  and  subsistence,  which  the 
United  States  were  already  bound  by  the  treaty  of  1828  to  meet  and 
pay  whenever  the  Cherokees  would  emigrate  ;  and  they  were  also 
bound  by  the  same  treaty  to  pay  each  the  value  of  his  possessions. 
The  Senate  award  fixed  the  value  of  those  possessions. 

He  then  proceeded  to  say  that  the  President  was  willing  to  enter 
into  a  negotiation  with  the  Cherokees  for  the  cession  of  all  their  claims 
east  of  the  Mississippi  on  condition  that  the  whole  amount  of  con- 
sideration to  be  given  should  not  exceed  $5^000,000. — (Id.,  143.) 
These  are  terms  which  are  appropriate  to  nothing  but  a  sale  of  pro- 
perty, or  a  transfer  and  assignment  of  claims. 

He  further  said  that  he  was  ready  to  receive  propositions  concerning 
the  stipulations  to  be  embodied  in  a  treaty  for  the  protection  of  private 
rights,  and  for  such  arrangements  as  might  be  necessary  for  the  re- 
moval and  re-establishment  of  their  people.  He  stated  the  President's 
desire  of  doing  justice  to  them,  and  providing  for  the  satisfaction  of 
their  claims. 

On  the  6th  of  March  the  delegation  requested  to  be  furnished  with 
all  the  proceedings  of  the  Senate,  that  they  might  fully  understand  its 
action. 

And  they  inquired  whether  they  were  to  understand  that  the 
$5,000,000  resolved  by  the  Senate  to  be  paid  for  their  lands  and  pos- 
sessions east  of  the  Mississippi  embraced  also  expenses  of  removal, 
subsistence  for  a  year,  blankets,  guns,  &c. ;  or  whether  it  was,  as  on  its 
face  appeared,  an  offer  of  that  sum  for  their  title  to  their  lands,  their 
improvements  and  houses  ;  and  whether  the  United  States  would,  in 
addition,  pay  expenses  of  removal,  &c.,  as  provided  for  in  the  general 
plan  for  the  Cherokee  removals  by  the  treaty  of  1828  ;  and  also  whether 
additional  country  west  would  be  given  them. — (Id.,  143-'4.) 

They  said  :  "It  is  indispensably  necessary  to  candor  and  justice  that 
all  these  points  should  be  clearly  understood  on  both  sides,  and  it  is 


J.    K.    ROGERS.  43 

utterly  impossible  for  us  to  proceed  further  until  we  do  understand 
them."— (lb.) 

On  tlie  7th  of  March,  1835,  the  Secretary  answered  :  "  The  sum  of 
$5,000,000  which  is  offered  for  your  claims  east  of  the  Mississippi, 
will,  as  I  have  already  informed  you,  be  in  full  for  your  entire  ces- 
sion." *  *  [That  he  had  already  informed  them;  and  that  they 
knew.  That  was  not  what  they  had  inquired.]  *  *  <<  Nothing 
more  will  be  paid  for  removal,  or  for  any  other  purpose  or  object 
whatever.  In  giving  to  you  the  full  value  of  your  property,  the  Uni- 
ted States  comply  with  all  the  demands  of  justice  upon  them.  This 
letter  closes  the  intercourse  in  writing  between  us."  *  *  [That 
was  the  answer  to  their  question.  It  admits  that  the  $5,000,000  was 
simply  the  value  of  their  property  ;  and  claims,  in  effect,  that  the 
treaty  of  1828,  so  far  as  it  bound  the  government  to  remove  and  sub- 
sist them,  was  no  longer  in  force.] — (Id.,  144,  145.) 

In  their  answer  of  9th  March,  the  delegation  protested  against  any 
treaty  being  made  with  a  rival  delegation,  and  proposed  that  the  mat- 
ter be  referred  to  the  consideration  of  the  nation  itself. — (Id.,  145-"6.) 

On  the  14th  of  March,  1835,  articles  of  treaty  were  drawn  up  at 
Washington,  and  signed  by  the  rival  (or  Ridge)  delegation,  in  accord- 
ance with  the  President's  and  Secretary's  construction  of  the  Senate's 
award.  At  the  end  of  it  was  a  schedule,  showing  how  the  $5,000,000 
was  to  be  apj^lied — $255,000  to  expenses  of  removal,  $400,000  to 
subsistence,  and  $250,000  to  claims  and  spoliations  ;  and  for  blankets, 
rifles,  and  kettles,  $80,000.  This  was  probably  the  estimate  on  which 
$600,000  was  afterwards  appropriated  for  spoliations  and  removals. — 
(Id.,  32  to  39.) 

These  articles  were  sent  out  to  the  Cherokees,  by  a  commissioner, 
with  a  letter  or  talk  from  the  President,  in  which  he  said:  "The 
Senate  of  the  United  States  have  given  their  opinion  of  the  value  of 
your  possessions — and  this  value  is  insured  to  you  in  the  arrangement 
which  has  been  prepared ;"  and  he  said,  that  the  stipulations  provided, 
*  *  3d.  For  the  removal,  at  the  expense  of  the  United  States,  of 
your  whole  people  ;  for  their  subsistence  for  a  year  after  their  arrival 
in  their  new  country,  and  for  agratuity  of  $150  to  each  person. — (Id., 
40.)  [It  must  have  sounded  strangely  to  the  Indians  to  be  told  that 
they  were  to  be  removed  at  the  expense  of  the  United  States,  and  re- 
ceive a  gratuity  of  $150  each,  when,  as  the  articles  and  schedule 
showed,  they  were  to  pay  these  to  themselves,  out  of  the  price  of  their 
land.] 

On  the  14tli  of  October  the  commissioner  addressed  his  first  com- 
munication to  the  Cherokees.  He  told  them  that  he  was  prepared 
"  to  enter  into  negotiations  for  the  settlement  of  all  the  difficulties  be- 
tween the  Cherokees  and  the  United  States,  and  for  a  cession  of  all 
their  lands  east  of  the  Mississippi,  on  the  basis  of  the  award  of  the 
Senate  for  the  same,  being  five  millions  of  dollars." — (Id.,  63.) 

But  he  did  not  submit  to  them  the  articles  sent  from  Washington, 
because  he  understood  there  were  objections  to  some  points^  which  he 
said  he  had  the  power  to  alter  ;  and  that  he  was  disposed  to  make  a 
treaty  as  favorable  to  the  Indians,  and  as  satisfactory  as  his  instruc- 
tions would  enable  him  to  do. — (Id.,  63.) 


44  ►-    ■  J.    K    EOGEES. 

He  was  informed,  in  reply,  that  the  Cherokees  wouhl  not  accept  the 
treaty  already  prepared,  and  was  invited  to  offer  new  terms. — (Id.,  64.) 

On  the  17th  of  October  the  commissioner  declined  to  treat  with 
the  authorities  of  the  nation,  declaring  their  constitution  and  civil  or- 
ganization to  be  nullities,  and  appealed  to  the  people  at  large.  But  he 
invited  the  appointment  of  a  committee  to  negotiate  and  settle  the  de- 
tails of  a  treaty,  "  on  the  basis  of  the  five  millions." — (Id.,  65,  66.) 

He  said,  that  the  Ross  delegation  at  Washington  were  authorized 
to  settle  all  the  difficulties  of  the  Cherokees  with  the  United  States, 
"  and  enter  into  a  treaty  for  the  cession  of  their  whole  country;"  and 
that  they  did  agree  to  sell  the  same  to  the  United  States  for  such  a 
sum  as  the  Senate  of  the  United  States  should  award.  The  Senate 
fixed  the  price  at  "five  millions;"  and  he  said  that  he  was  sent  there 
"  to  conclude  a  treaty  on  the  basis  of  the  rive  millions." — (Id.,  66.) 

And  he  said,  that  if  there  should  be  "  any  important  points  of  dif- 
ference between  the  Cherokees  and  commissioners,  in  regard  to  the 
award  of  the  Senate,  they  could  be  included  in  a  separate  and  condi- 
tional article,  by  which  they  would  again  be  brought  before  the  Presi- 
dent and  Senate  for  their  final  determination." — (lb.) 

The  Cherokees  afterwards  appointed  twenty  persons  as  a  delegation 
to  make  a  treaty. — (lb.) 

The  commissioner  then  submitted  an  article,  by  which  the  Chero- 
kees were  to  cede  "  all  their  right  and  title  to  all  their  lands  east  of 
the  Mississippi  river/ 'and  "to  accept  in  full  for  all  their  claims  against 
the  United  States,  of  every  kind  and  nature  whatsoever,"  the  sura  of 
|5, 000, 000,  "according  to  the  award  of  the  Senate  of  the  United 
States,"  to  be  paid  as  detailed  in  the  following  articles.  And  the  ar- 
ticle went  on  to  say, that  as  a  question  had  arisen  "whether  the  Senate 
of  the  United  States  intended  to  include  in  the  award  also  the  just 
claims  of  the  Cherokee  people  against  the  United  States,  or  the  price 
of  the  land  only,  therefore  it  was  agreed  that  that  matter  should 
be  again  referred  to  the  Senate  for  their  determination  ;  and  if  the 
claims  were  not  intended  to  be  included,  then  there  should  be  allowed 

■ dollars  for  claims  ;  but  if  the  Senate  would  not  allow  that 

additional  amount,  it  should  not  invalidate  the  treaty. — (Id.,  88.) 

The  Cherokees  answered,  that  the  terms  proposed  were  the  same 
■which  their  people  had  already  rejected ;  that  the  provision  about  their 
just  claims  was  only  conditional,  and  dependent  on  the  approval  of 
the  Senate,  who,  to  judge  from  the  Secretary's  letter,  would  be  sure 
to  disapprove.  That  thus  the  Cherokees  would  be  bound,  and  the 
United  States  not.  They  therefore  thought  that  no  treaty  could  be 
made,  and  further  negotiations  would  be  useless ;  and  so  it  was  un- 
necessary to  speak  on  other  points,  which  otherwise  it  might  be  expe- 
dient to  explain. — (Id.,  90.) 

Afterwards,  the  commissioner  drew  up  the  articles  of  a  treaty.  The 
first  article  was  precisely  as  cited. — (Id,,  94.) 

By  a  subsequent  article,  claims  of  the  Cherokees  for  spoliations 
were  to  be  ascertained  and  paid  by  the  United  States. — (Id.,  96.)  The 
amount  of  these  claims  and  expenses  of  removal  and  subsistence  to  be 
deductedfrom  the  consideration  money  allowed  by  the  treaty. — (Id. ,  98.) 

On  the'Slst  October  the  delegation  informed  him  that  the  propo- 


J.    K.    ROGERS.  45 

sitions  remained  substantially  the  same  as  before;  and  that  they  were 
going  to  Washington,  there  to  make  a  treaty. — (Id.,  99.) 

After  they  went  to  Washington,  some  of  the  Cherokees  were  got 
together,  and  the  treaty  of  1835  was  made. 

The  journal  of  the  Cherokee  council  which  made  it  states,  that  "it 
was  agreed  by  the  commissioner  that  there  should  be  a  certainty  on 
the  subject  of  claims  before  the  treaty  was  submitted  to  the  Senate." — 
(Id.,  113.)  Fourteen  thousand  nine  hundred  and  ten  Cherokees  signed 
a  protest  against  this  treaty,  as  made  by  unauthorized  persons  ;  and 
the  national  council  and  committee  did  the  same. — (Id.,  114,  115.) 

The  treaty  of  1835  was  made  on  the  29th  day  of  December.  Its 
first  article  states  the  question  submitted  to  the  Senate  to  be,  whether 
the  $5,000,000  was  to  include  the  amount  of  claims  for  spoliations. 

The  supplementary  articles,  signed  March  1,  1836,  enlarge  the 
question  to  be  submitted.  They  state  the  Cherokee  opinion  to  be, 
that  the  award  of  the  Senate  was  not  intended  to  include  the  amount 
required  to  remove  them,  nor  the  spoliation  claims  ;  that  this  opinion 
had  been  confirmed  by  that  of  certain  senators  who  had  voted  on  the 
question  ;  that  the  President  was  willing  to  refer  the  subject  to  the 
Senate  for  their  consideration;  and  that  the  question  to  be  decided  was, 
whether  the  $5,000,000  included  expenses  of  removal  and  spoliation 
claims.  If  not,  further  provision  Was  to  be  made,  and  §600,000 
allowed  for  expenses  of  removal  and  all  claims. 

On  the  29th  February,  1836,  Messrs.  Cuthbert  and  King,  of  Georgia, 
and  King  of  Alabama,  stated  to  the  President,  in  writing,  that  the 
Senate  "did  not  intend  that  the  allowances  for  spoliations  or  the 
expenses  of  removal  should  be  deducted  from  the  amount  of  $5,000,000, 
recommended  to  be  oifered  to  the  Cherokees  as  the  price  of  their 
TERRITORY  ;  and  that  in  their  opinion  the  Senate  would  readily  add 
$600,000  to  the  $5,000,000,  to  meet  those  two  expenditures." 

This  proves  several  things  : 

1st.  That  the  Secretary  did  not  correctly  state  the  Senate  resolution 
when  he  represented  it  as  expressing  the  opinion  that  $5,000,000 
might  probably  be  allowed  for  the  claims  of  the  Cherokees. 

2d.  That  the  Senate  meant  to  give  the  $5,000,000  for  the  territory 
of  the  Cherokees.  Subsistence,  then,  stood  on  the  same  footing  as 
expenses  of  removal.  If  the  United  States  was  to  pay  one,  for  the 
same  reason  it  was  to  pay  the  other. 

3d.  The  $600,000  was  nut  given  as  a  finality,  but  it  was  the  con- 
cession of  a  right,  and  to  meet  expenditures  for  which  the  United 
States  were  bound. 

4th.  It  was  a  fraud  on  the  Cherokees  to  state  tlie  purposes  for  which 
this  $600,000  was  given,  as  they  are  stated  in  the  3d  article  of  the 
supplement ;  that  is,  for  all  claims  of  every  nature,  &c.,  reservations, 
pre-emptions,  &c. 

Tlie  Senate  ratified  the  treaty  and  supplement  on  the  23d  of  May, 
1836.  By  that  they  decided  the  point  in  issue,  in  favor  of  the  Chero- 
kees, tliat  the  $5,000,000  was  for  their  lands  alone.  Everything  in 
the  treaty  contrary  to  that,  or  based  on  the  contingency  of  a  contrary 
decision,  was  thereby  ex})unged  ;  and  the  obligation  of  the  United 
States  to  remove  and  subsist  the  Indians,  or  pay  the  commutation,  and 


46  *  J.    K     ROGERS, 

to  pay  the  spoliation  claims,  remained  perfect  and  intact.  They  made 
a  partial  appropriation  for  these  purposes,  and  in  1838  another ;  neither 
was  in  full,  and  both  were  not  sufficient. 

The  letter  of  Messrs.  Cuthbert,  King,  and  King,  was  before  the 
Senate  when  they  decided  the  question  submitted  to  them.  If  the 
statement  contained  in  it  had  not  been  correct,  it  would,  of  course, 
have  been  promptly  repudiated. 

The  Cherokees  were  asking  no  concession,  favor  or  compromise. 
They  never  have  done  that  to  this  day  ;  they  have  always  stood  on  the 
award  of  the  Senate.  They  claimed  what  they  did  as  a  matter  of 
right.  It  would  be  a  very  arbitrary  assumption  to  say  that  a  gratuity 
was  given  them  when  they  asked  none,  but  stood  on  their  strict  rights 
under  the  award  and  the  treaty  of  1828,  and  that  of  1835  also,  if  the 
decision  was  in  their  favor.  It  was  in  their  favor.  The  obligation 
was  admitted.     The  appropriation  resulted  from  that. 

Treaty  of  1835,  (7  Stat,  at  Large,  478.) 

Preamble.  The  Senate  had  advised  "that  a  sum,  not  exceeding  five 
millions  of  dollars,  be  paid  to  the  Cherokee  Indians  for  all  their  lands 
and  possessions  east  of  the  Mississippi  river. 

The  submission  to  the  Senate  is  said  to  have  been  "to  fix  the  amount 
which  should  be  allowed  the  Cherokees  for  their  claims  and  for  a 
cession  of  their  lands." 

Art.  1.  (479.)  The  Cherokees  "cede,  relinquish,  and  convey,  all 
their  lands,"  "and  release  all  their  claims  upon  the  United  States, 
for  spoliations  of  every  kind,"  in  consideration  of  $5,000,000,  to  be 
expended,  paid,  and  invested,  as  agreed.  But  as  a  question  had  arisen, 
whether  by  the  award  the  Senate  had  "included  and  made  any  allow- 
ance or  consideration  for  claims  for  spoliations,"  the  United  States 
agreed  that  that  question  should  be  again  submitted  to  the  Senate  for 
their  consideration  and  decision  ;  and,  if  no  allowance  were  made  for 
spoliations,  then  an  additional  sum  of  $300,000  should  be  allowed  for 
the  same. 

Art.  8.  The  United  States  agreed  and  stipulated  to  remove  the 
Cherokees  to  their  new  homes,  (west  of  the  Mississippi,)  and  to  subsist 
them  one  year  after  their  arrival  there,  furnishing  steamboats,,  wagons, 
and  physicians. 

Those  who  should  remove  themselves  to  be  allowed  for  each  mem- 
ber of  their  family,  for  expenses  of  removal,  $20,  and  for  tlie  year's 
subsistence  $33  33. 

Art.  9.  Cherokee  improvements  and  ferries  to  be  valued,  and  out  of 
such  value  their  just  debts  (of  individual  Indians)  to  be  paid.  Each 
Indian  to  be  furnished  with  money  enough  to  enable  him  to  remove  ; 
the  balance  of  their  dues  to  be  paid  west  of  the  Mississippi.  Mission- 
ary establishments  to  be  valued,  and  paid  to  the  missionaries. 

Art.  10.  The  President  to  invest  as  follows  : 

For  general  fund,  in  addition  to  existing  annuities $200,000 

Orphans' fund 50,000 

School  fund , 150,000 


J.    K     ROGERS  47 

$00,000  appropriated  to  pay  claims  of  citizens  of  the  United  States 
against  the  Cherokee  nation. 

$300,000  to  pay  claims  of  Cherokees  for  unsatisfied  spoliations. 

Art.  12.  Individuals  and  families  not  wishing  to  remove  "shall  be 
entitled  to  receive  their  due  portion  of  all  the  personal  benefits  accruing 
under  this  treaty  for  their  claims,  improvements,  and  per  capita,"  so 
soon  as  appropriation  made  for  the  treaty. 

$1UU,000  to  be  expended  for  poor  Cherokees. 

Art.  15.  Af^r  deducting  the  amount  actually  expended  for  payment 
for  improvements,  ferries,  claims  for  spoliations,  removal,  subsistence, 
and  debts  and  claims  upon  the  nation,  and  the  additional  quantity  of 
lands,  and  goods  for  poor  Cherokees,  and  the  sums  to  be  invested  for 
general  national  funds  ;  the  balance  to  be  divided  equally  among  all 
the  people  belonging  to  the  Cherokee  nation  east,  according  to  the 
ceu.su-s  just  then  completed  ;  and  those  who  had  removed  to  be  paid  for 
their  improvements,  where  entitled  to  the  benefits  of  the  final  treaty. 

Then  came  the  letter  of  Messrs.  Cuthbert,  King,  and  King.  The 
Cherokees  found  that  the  question  to  be  submitted  to  the  Senate  was 
not  fairly  and  fully  stated  in  the  treaty,  and  they  ividened  it  by  the 
supplementary  articles  afterwards  agreed  upon,  so  as  to  make  it  include 
expeui^,es  of  removal ;  those  expenses  and  their  subsistence  occupying  a 
common  ground. 

Supplemental  Articles,  March  1,  1836. — (488.) 

Ai-.T.  1.  The  pre-emptions  and  reservations  in  articles  12  and  13  relin- 
quished. 

Art.  2.  The  Cherokees  having  supposed  that  the  $5,000,000,  given 
as  the  value  of  the  Cherokee  lands  and  possessions,  was  not  intended 
to  include  the  amount  required  to  remove  them,  nor  the  value  of  their 
spoliation  claims,  and  that  opinion  being  confirmed  by  some  members 
of  the  Senate,  and  the  President  being  willing  that  this  subject  should 
be  referred  to  the  Senate  for  their  consideration,  and,  if  it  was  not  so 
intciidtd^  that  such  provision  should  be  made  for  the  objects  specified, 
as  to  the  Senate  might  seem  just : 

There/ore,  agreed  that  $600,000  be  allowed  the  Cherokee  people^ 
"  to  include  the  expense  of  their  removal  and  all  claims  of  every  na- 
ture and  description  against  the  government  of  the  United  States,  not 
herein  otherwise  expressly  provided  for,  and  to  be  in  lieu  of  the  relin- 
quished reservations  and  pre  emptions,  and  the.$300,000  for  spoliations, 
mentioned  in  the  first  article  of  the  treaty.  This  $600,000  to  be  ap- 
plied and  distributed  according  to  the  treaty,  and  any  surplus  remain- 
ing, ai'ter  expenses  of  removal  and  payment  of  claims,  to  go  to  the 
education  fund."  *  *  [This  meVely  referred  to  the  Senate,  and  if 
approved,  to  be  part  of  the  treaty.] 

Art.  4.  The  $100,000  mentioned  in  art.  12  (for  the  poor  Cherokees) 
to  go  to  the  general  fund,  making  it  $500,000. 

As  the  Senate  committee  well  said,  the  provision — "the  United 
States  also  agree  and  stipulate  to  remove  the  Cherokees  to  their  new 
homes,  and  to  subsist  them  one  year  after  arrival  there" — imports 
pecuniary  responsibility,  an  obligation  to  do  this,  over  and  above  pay- 
ing for  their  lands,  rather  than  an  agreement  to  disburse  a  trust  fund. 


48  .J.    K.    EOGEES. 

They  might  have  added,  that  the  stipulation  to  furnish  them  steam- 
boats and  baggage-wagons,  physicians  and  medicines,  conclusively 
showed  the  same  thing  ;  as  also  the  provisions  for  allowing  |20,  and 
paying  |33  33  'per  capita,  to  all  who  preferred  to  remove  and  subsist 
themselves.  This  article  ivas  to  be  absolute,  if  the  Senate  decided  for 
the  CheroJcees. 

It  is  obvious  that  the  15th  article,  in  providing  for  deducting  these 
expenses  and  expenditures  from  the  $5,000,000,  did  so  simply  to  pro- 
vide for  the  case  of  a  decision  by  the  Senate  that  these  were  to  come 
out  of  the  $5,000,000,  or  rather  that  that  sum  was  not  the  price  of 
the  lands  alone,  which  was  the  true  question.  If  they  decided  that  it 
was,  then  none  of  these  expenses  were  to  be  borne  by  the  Cherokees — 
subsistence  no  more  than  removal. 

And  it  is  not  an  insignificant  consideration,  that  all  the  neighboring 
tribes  were  removed  and  subsisted  at  the  expense  of  the  government. 

That  was  the  case  as  to  the  Choctaws,  (7  Stat,  at  Large,  336  ;)  with 
the  Creeks,  (Id.,  367  ;)  and  with  the  Seminoles,  (Id.,  369,)  by  treaties 
made  in  1832  ;  and  the  United  States  had  assumed  the  same  obligation 
to  the  Cherokees  by  the  treaty  of  1828. 

The  treaty  is  framed  with  a  double  aspect.  It  assumes  that,  although 
the  |5, 000, 000  is,  as  the  Cherokees  contend,  merely  and  solely  the 
price  of  their  lands  and  possessions  or  claims  east  of  the  Mississippi^ 
yet  the  Cherokees  are  to  remove  and  subsist  themselves ;  and  their  spo- 
liation claims  are  to  be  satisfied  out  of  the  |5,000,00().  The  Chero- 
kees say  that  if  the  $5,000,000  is  for  their  lands  alone,  then  under  the 
treaty  of  1828,  which  that  of  1835  declares  is  still  in  force,  the  United 
States  continue  bound  to  remove  and  subsist  them. 

The  treaty,  I  say,  is  first  framed  on  the  view  of  the  President  and 
Secretary  of  War.  The  8th  article  provides  that  the  United  States 
shall  remove  and  subsist  the  Indians.  The  15th  article  provides  that 
the  expenses  of  doing  so  shall  be  deducted  from  or  paid  out  of  the 
$5,000,000.  These  articles  seem  inconsistent.  They  are  really  not 
so.  If  the  Senate  should  decide  (by  allowing  the  $600,000)  that  the 
5,000,000  was  the  price  of  their  lands  alone,  then  it  resulted,  as  a 
corollary  from  that  decision,  that  the  United  States  must  remove  and 
subsist  them.  That  obligation  could  only  exist  as  a  consequence  of 
that  decision.  To  appropriate  $600,000  was  to  acknowledge  the  whole 
obligation — to  acknowledge  it  to  its  full  extent. 

The  treaty  is  framed  to  provide  for  both  contingencies.  If  the  Sen- 
ate decide  that  the  $5,000,000  was  for  the  lands  only,  then  the  8th 
article  stands  unqualified  by  the  15th  and  reiterating  the  8th  article 
of  the  treaty  of  1828.  If  they  decide  that  the  Indians  were  to  remove 
and  subsist  themselves,  then  the  loth  article  stands  aud  qualifies  the 
8th. 

Thus  it  is  evident  that  the  real  question  to  be  put  was,  not  whether 
that  sum  covered  this  or  that  other  thing,  the  claims,  the  expenses  of 
removal,  or  the  subsistence  ;  but  whether  it  was  not  simply  the  price  of 
the  lands  and  possessions,  (which  included  improvements  and  ferries.) 
That  is,  the  Cherokees  insisted  on  the  letter  of  the  award. 

So  it  is  agreed,  that  if  the  Senate  decide  according  to  the  Cherokee 
construction,  $600,000   shall  be  appropriated  to  pay  the  spoliation 


J.    K.    ROGEES.  4M 

claims,  expenses  of  removal,  the  value  of  relinquished  reservations  and 
pre-emptions,  and  all  claims  against  the  government  of  every  descrip- 
tion.    The  year's  subsistence  is  not  specially  mentioned. 

The  Senate  had  no  power  to  decide  any  other  question  than  the  one 
submitted.  Nothing  in  the  treaty  or  supplement  relinquishes  any 
right  under  their  award,  or  agrees  to  take  anything  in  lieu  of  it. 

Consequently,  the  decision  of  the  Senate  by  allowing  the  $600,000 
was,  that  the  $5,000,000  was  the  price  of  the  land  alone. 

Then  appropriating  $600,000  for,  among  other  things,  the  spolia- 
tion claims  and  expenses  of  removal,  (the  former  of  which  the  United 
States  was  to  pay,  to  the  extent  of  $300,000,  if  the  Senate  decided  for 
the  Cberokees,  and  the  latter  of  which  they  iiad  agreed  to  bear,)  did 
not  relieve  the  United  States  from  paying  the  whole  expenses  of 
removal,  in  case  the  $600,000  did  not  cover  them  as  well  as  the 
claims,,  &g. 

The  United  States  were  to  remove  and  subsist  the  Cherokees,  or  pay 
them  a  certian  sum  each  in  case  they  did  not.  That  agreement  was 
positive.  The  15th  section,  so  far  as  it  undertook  to  set-off  the  ex- 
penses of  removal  and  subsistence  against  the  $5,000,000,  was  as  much 
objected  to  by  the  Cherokees,  and  liable  to  the  same  objection  as  the 
attempt  to  set-off  the  spoliation  claims.  The  moment  it  was  deter- 
mined that  the  award  meant  what  it  said,  then  it  was  settled  that  the 
United  States  were  bound  to  remove  and  subsist  the  Indians  ;  and  the 
part  of  the  15th  article  contrary  to  the  Cherokee  construction  disap- 
peared. 

Did  the  Indians  mean  to  take  the  $600,000  in  lieu  of  the  obligation 
of  the  United  States  to  remove  and  subsist  them,  in  lieu  of  the  spolia- 
tion claims,  and  in  lieu  of  the  reservations  and  pre-emptions,  and  in 
full  for  all? 

If  they  did,  then  the  United  States  had  nothing  to  do  with  remov- 
ing them.  If  they  chose  to  do  so  and  to  subsist  them,  and  the  ex- 
penses overran  the  $600,000^  (after  paying  for  the  reservations  and 
pre-emptions,)  by  what  right  could  the  United  States  take  the  excess 
out  of  the  $5,000,000? 

The  Indians  did  not  mean  to  take  it  in  full.  Their  position  was 
always,  and  always  has  been  one  and  the  same.  It  was  "the  5,000,000 
is  the  price  of  our  lands,  improvements,  and  ferries ;  you  must  pay  us 
that,  and  in  addition  pay  our  claims  for  sp)oliations,  and  remove  and 
subsist  us,  as  you  agreed  to  do  by  the  treaty  of  1828." 

The  Senate  assents  to  the  justice  of  this  and  says  :  "It  is  so,  and 
therefore  we  appropriate  $600^000  for  those  purposes."  It  was  not 
enough.  Who  was  to  bear  the  excess  of  expense?  Clearly  the  United 
States. 

By  the  supplement,  the  Senate  was  to  decide  whether  the  $5^000,000 
was  meant  to  cover  the  spoliation  claims  and  expenses  of  removal,  and 
if  not,  then  such  further  provision  was  to  be  made  therefor  as  might 
appear  to  the  Senate  to  be  just ;  and  by  way  of  such  provision  for 
paying  these  claims,  and  removing  and  subsisting  them,  an  appropria- 
tion of  $600,000  was  to  be  made. 

It  is  merely  tlie  common  case  of  too  small  an  appropriation,  made 
to  pay  an  acknowleged  claim.     The  Senate  admits  that  the  sum  of 
Mis.  Doc.  94 4 


50  ■  J.   K.    EOGEES, 

$5,000,000  did  not  cover  tlie  expenses  of  removal  or  the  claims.  That 
admits  that  those  claims  and  expenses  are  to  he  paid  hy  the  govern- 
ment. It  proceeds  to  make  provision  for  them  thus  admitted.  To 
do  so  it  allows  the  Cherokees  $600,000,  to  include  (not  to  he  in  lieu 
or  satisfaction  of)  these  expenses  and  claims,  hut  to  he  in  lieu  of  the 
reservations  and  pre-emptions  and  the  $300,000  mentioned  in  the 
treaty.  It  contemplates  that  a  surplus  will  remain  and  provides  how 
it  shall  go. 

Suppose  Congress  appropriates  $30,000  to  pay  salaries  of  judges  of 
the  Su[»reme  Court,  clerks,  marshal,  and  contingent  expenses,  the  sur- 
plus to  go  to  a  particular  lund,  would  any  one  imagine  that  this  was 
meant  to  he  in  lieu  of  these  salaries  and  expenses  ? 

The  arbitrator  could  not  go  heyond  nor  lall  short  of  the  submission. 
The  Senate  was  to  decide  whether  the  $5,000,000  was  the  price  of  the 
land  alone,  or  whether  it  included  expenses  of  removal  and  spoliations. 
"Whichever  way  you  put  the  question  it  comes  to  the  same.  If  it  did 
not  include  them  it  was  because  it  was  the  price  of  the  land  alone. 
One  was  a  mere  corollary  of  the  other.  The  award  said  nothing  about 
those  expenses  and  charges.  The  proposition  is  the  award  gives 
$5,000,000  for  the  land  alone  ;  ergo,  it  does  no  include  payment  of 
claims  or  expenses  of  removal,  and  for  the  same  reason  it  does  not 
include  subsistence. 

The  moment  the  Senate  decided  that  it  did  not  include  these,  the 
United  States  became  bound  to  remove  and  subsist  the  Indians,  under 
the  treaty  of  1828,  which  remained  in  force.  To  respond  to  that 
obligation  and  liability,  the  $600,000  is  allowed.  It  could  not  have 
been  allowed,  except  as  a,  forced  consequence  of  the  recognition  of  the 
obligation.  It  was  asked  solely  on  that  ground,  as  such  a  consequence, 
not  as  a  new  favor  or  gratuity. 

This  was  so  clear — it  was  so  clear  that  the  $5,000,000  covered 
neither  these  claims  for  spoliations,  nor  expenses  of  removal,  nor  sub- 
sistence— that,  on  the  12th  of  June,  1838,  Congress  appropriated  the 
sum  of  $1,047,067,  in  full  for  all  objects  specified  in  the  eighth  article 
of  the  treaty  of  1835,  and  to  aid  in  subsisting  the  Cherokees  for  one 
year,  and  provided  that  no  part  of  this  should  be  deducted  from  the 
$5,000,000.— (5  Stat,  at  Large,  242.) 

This  was  a  clear  legislative  declaration  that  the  expenses  of  removal 
and  subsistence  loere  to  he  borne  by  the  United  States,  and  could  not 
properly  be  paid  out  of,  or  deducted  from,  the  $5,000,000. 

The  Secretary  of  War  had  decided  that  the  government  ougTit  to 
hear  the  expenses  of  removal.  He  thought  that  General  Scott  might 
probably  have  doubted  as  to  his  power  to  agree  to  pay  those  expenses 
and  the  expense  of  subsistence^  not  that  he  would  certainly  have  done 
so  ;  and  he  submitted  the  question  to  Congress — clearly  indicating  his 
own  opinion  to  he,  that  the  intention  of  the  treaty  was  that  the 
United  States  should  pay  both.  This  was,  by  the  act  of  1838,  clearly 
admitted  to  be  the  correct  view  of  the  case. 

On  the  25th  of  May,  1838,  Mr.  Poinsett,  considering  the  United 
States  bound  to  pay  the  subsistence,  as  well  as  expenses  of  removal, 
estimated,  on  the  call  of  the  House,  as  follows  : 


J.    K.    ROGERS.  51 

Balance  necessary  for  expenses  of  removal $435,900  00 

Subsistence  for  18,335  persons  entitled,  (including  those 

who  had  already  emigrated,)  and  at  $33  33  a  head....  611,105  55 


1,047,005  55 


[H.  Eep.,  123,  1st  sess.  33d  Cong.,  p.  9.] 


The  estimate  was  accepted,  and  Congress  concurred  in  Mr.  Poinsett's 
conclusion,  by  appropriating  as  follows  : — (Act  June  12,  1838.) 

They  took  the  balance  necessary  for  removal  to  be $435,900  00 

Subsistence  for  18,335  Indians,  at  |33  33^  each 611,167  00 


And  appropriated  this  gross  amount 1,047,067  00 


They  provided  that  this  should  not  be  paid  out  of  the  $5,000,000  ; 
and  as  if  to  show,  still  more  conclusively,  that  the  full  extent  of  the 
obligation  to  remove  and  subsist  the  Indians  was  acknowledged,  the 
act  declares  that  the  appropriation  in  full  for  other  matters  is  only  in 
aid  of  the  subsistence  of  the  Indians,  the  amount  required  for  which 
was  necessarily  uncertain.  What  stronger  recognition  of  the  whole 
obligation,  to  its  extremest  extent,  could  there  be  ? 

The  Senate  committee,  when  the  Senate  was  made  arbitrator  to 
settle  the  legal  question  whether  the  subsistence  ivas  properly  payable 
out  of  the  $5,000,000,  say,  (Rep.  Com.  Ind.  Aflf.,  Aug.  8,  1850,)  that 
they  think  it  should  be  borne  by  the  United  States. 

They  say  that,  by  a  strict  construction  of  the  treaty  of  1835,  it  was 
a  charge  on  the  $5,000,000  ;  but  they  state  reasons  for  deciding  either 
way. 

The  reasons  they  give /or  this  view  of  the  treaty  are : 

1st.  That  it  was  so  understood  by  the  government  at  the  time,  and 
that  subsistence  was  enumerated,  in  the  15th  article,  amono*  the 
expenditures  to  be  offset  against  the  $5,000,000;  *  *  *  *  "  But 
it  was  not  so  understood  by  the  Cherokees.  The  Senate's  award  of 
$5,000,000  "  for  their  lands  and  possessions,"  was  not  so.  And  its 
inclusion  in  the  15th  article  was  to  bind  the  Cherokees  only  in  case 
the  Senate  should  hold  that  the  $5,000,000  was  not  solely  the  price  of 
the  lands,  improvements,  and  ferries.  So  much  of  the  15th  article 
was  conditional. 

2d.  The  Secretary  of  War  informed  Ross,  before  the  treaty  was 
ratified,  that  nothing  would  be  allowed  for  removal  and  subsistence. 
*  *  That  was  Ids  construction.  It  was  contrar}^  to  the  award,  and 
not  the  construction  of  the  other  contracting  party.  And  the  Senate 
and  Congress  have  since  reversed  his  decision. 

3d.  That  the  treaty  generally  specifies  what  was  to  be  borne  by  the 
United  States.  *  *  *  True  ;  and  the  removal  and  subsistence 
were  not  so  specified,  because  the  parties  disagreed  as  to  them. 
Whether  they  were  to  be  borne  or  not  was  left  to  the  Senate. 

4th.  That  the  whole  history  of  the  negotiation  shows  that  the 
$5,000,000  was  all  the  United  States  were  willing  to  pay  for  lands 


52  J.   K.    EOGEES. 

possessions,  indemnity,  removal,  &c,  *  *  *  &  rj}-^^  negotiations 
were  professedly  based  on  tlie  award  of  the  Senate.  The  President, 
Secretary,  and  Commissioner  misunderstood  that  award.  They  were 
not  the  United  States.  What  "  the  United  States  were  willing  to 
pay,"  is  not  to  be  learned  from  what  they  said,  but  from  the  award 
as  interpreted  by  the  Senate  itself. 

The  agreement  of  the  Senate  to  give  $5,000,000  for  the  lands  and 
possessions,  shows  the  contrary,  beyond  any  question. 

The  invariable  policy  of  the  government  shows  the  contrary  ;  and, 
as  the  committee  well  say,  the  expense  of  removal  and  subsistence  are 
sacrifices  which  a  simple  remuneration  for  the  j)rice  of  homes  does  not 
compensate. 

But  the  committee  decide  that  the  appropriation  by  the  act  of  1838 
was  a  clear  legislative  affirmation  of  1he  terms  offered  by  the  Indians, 
and  acceded  to  by  the  Secretary  of  War — a  new  consideration  offered 
the  Indians  to  induce  them  to  abide  by  its  terms. 

We  think  it  was  more  and  different.  It  was  a  clear  and  distinct 
admission  of  the  correctness  of  the  Secretary's  opinion,  that,  by  the 
treaty  itself,  the  United  States  was  bound  to  bear  all  charges  of  re- 
moval and  subsistence.  It  was  an  authoritative  interpretation  of  the 
treaty,  in  accordance  with  the  Cherokee  construction. 

So  the  Senate  committee,  in  1850,  decided  that  the  United  States 
was  bound  to  pay  the  subsistence. 

They   found   that   it   had    been   charged    against   the 

$5,000,000  to  the  sum  of $800,528  31 

Provided  for  by  act  of  1838,  (as  per  estimate) 611,105  55 

Balance  to  be  paid  by  the  United  States 189,422  T6 


Thus  charging  the  United  States  with  the  whole  subsistence. 

The  Senate  adopted  this  report,  and  so  decided  that  the  United 
States  was  bound  to  pay  the  whole  subsistence. 

The  act  of  Congress,  (Sept.  30,  1850,)  appropriated  this  amount, 
and  declared  that  it  had  been  improperly  charged  to  the  treaty  fund. 

The  resolution  of  the  Senate  declared  the  same,  and  that  the  Chero- 
kee nation  was  entitled  to  the  balance. 

Treaty  of  August  6,  1846,  (9  Stat,  at  Large,  871,)  made  ivith  the  Boss 
party,  the  treaty  party ,  and  the  old  settlers. 

Art.  3.  Admits  that  the  amounts  allowed  by  the  board  of  commis- 
sioners "  for  rents,  under  the  name  of  improvements  and  spoliations, 
and  for  property  of  which  the  Indians  were  dispossessed  under  the  six- 
teenth article  of  the  treaty  of  1835,"  and  for  reservations  under  the 
thirteenth  article,  were  not  justly  chargeable  against  the  $5,000,000  ; 
and  agrees  to  refund  them. 

Aet.  4.  To  ascertain  the  interest  of  the  old  settlers  in  the 
$5,600,000,  agreed  to  be  paid  by  the  treaty  of  1835,  all  investments 
and  expenditures  properly  chargeable  against  that  sum  (as  enume- 
rated in  article  fifteen  of  that  treaty)  to  be  deducted,  excluding  all 


J.    K.    ROGERS  53 

extravagant  and  improper  expenditures ;  and,  as  to  the  western 
Cherokees,  the  expenses  of  removal  and  subsistence,  commuted  at 
$53  33  each,  to  be  charged  against  the  $5,000,000. 

Art,  9.  The  United  States  agree  to  make  a  fair  and  just  settlement 
of  all  moneys  due  the  Cherokees,  to  be  divided  per  capita  under  the 
treaty  of  1835  ;  which  settlement  should  embrace  all  sums  paid  for 
improvements,  &c.,  spoliations,  removal,  subsistence,  investments, 
&c.  ;  deducting  all  which  from  the  sum  of  $6,647,067 — the  balance  to 
be  paid  per  capita  to  all  "  entitled  to  receive  the  same  under  the 
treaty  of  1835  and  supplement  of  1836,  being  all  those  then  residing 
east." 

Art.  10.  ''It  is  expressly  agreed,  that  nothing  in  the  foregoing 
treaty  contained  shall  be  so  construed  as  in  any  manner  to  take  away 
or  abridge  any  rights  or  claims  which  the  Cherokees,  now  residing  in 
States  east  of  the  Mississippi  river,  had  or  may  have  under  the  treaty 
of  1835,  and  the  supplement  thereto." 

Art.  11.  The  Cherokees  contending  that  the  year's  subsistence  tya-s 
not  chargeable  against  the  $5,000,000,  it  was  submitted  to  the  Senate 
to  decide  whether  tne  United  States  or  the  Cherokees  were  to  pay  the 
subsistence;  if  the  Cherokees,  then  whether  it  should  be  charged  at 
more  than  $33  33  a  head,  and  whether  interest  should  be  allowed  on 
the  amounts  due  the  Cherokees. 

Thus  it  was  again  submitted  to  the  same  body  that  had  made  the 
original  award,  giving  the  Cherokees  $5,000,000  for  their  land  and 
possessions,  to  determine  whether,  under  that  award  and  the  treaty  of 
1835,  the  expenses  of  removal  and  subsistence  of  the  Indians  were 
properly  chargeable  against  the  $5,000,000.  It  was  the  same  ques- 
tion submitted  to  them  in  1836,  and  decided  in  favor  of  the  Cherokees; 
the  same  submitted  to  both  Houses  of  Congress  in  1838,  when,  by  ap- 
propriating every  dollar  estimated  for  such  removal  and  subsistence 
of  every  Cherokee  Indian  living,  they  broadly  acknowledged  the  legal 
obligation,  to  the  entire  and  fullest  extent.  Again,  the  Senate  was 
called  on  to  say  whether,  under  the  treaty  of  1835,  the  Indians  were 
to  remove  and  subsist  themselves  ;  in  other  words,  whether  the  obli- 
gation on  the  United  States  to  do  so,  created  by  the  treaty  of  1828, 
was  abrogated  by  the  treaty  of  1835.  How  could  it  have  been  so  ab- 
rogated, when  the  eighth  article  reiterates  it ;  and  when,  by  ratifying 
the  treaty,  the  Senate  decided  that  that  of  1828  remained  in  full  force, 
and  that  the  Indians  were  to  have  five  millions  for  their  lauds  alone? 

The  Senate  committee  decided  that,  under  the  treaty  of  1835  and 
the  act  of  1838,  the  expenseof  subsistence  was  not  properly  chargeable 
to  the  treaty  fund.  The  Senate  abopted  this  decision.  The  United 
States  had  elected  this  arbitrament.  They  were  forever  concluded  by 
the  decision,  in  favor  of  all  parties  interested.  It  was  a  decision  as  to 
the  rights  of  the  Indians  under  the  Senate  award  made  in  1835.  It 
bound  and  concluded  the  United  States.  It  forever  estopped  them  to 
allege  the  contrary. 

The  act  of  Congress  of  30th  September,  1850,  (9  St.  at  Large,  556,) 
appropriates  the  sum  of  $189,422  76,  reported  by  the  Senate  com- 
mittee, and  adopted  by  the  Senate,  with  interest,  declaring  it  to  be  for 
expenses  paid  for  subsistence,  improperly  charged  to  the  treaty  fund, 


54  J.    K.    ROGERS. 

under  the  Senate  award  of  5tli  September,  1850,  and  eleventh  article 
of  treaty  of  1846. 

The  Court  thinks,  that  the  fact  that  the  United  States  agreed  to  pay 
1,000  only,  conclusively  shows,  that  they  intended  thereby  to  limit 
the  extent  of  their  obligation. 

That  does  not  seem  to  me  to  follow.  It  was  not  proposed  to  'lubmic 
to  the  Senate,  whether  its  former  award  should  be  abrogated  ;  but 
what  it  was.  Upon  their  decision  being  made,  the  legal  consequences 
resulted.  If  they  decided  that  the  |5, 000, 000  was  not  exclusively  the 
price  of  the  Cherokee  lands  and  possessions,  then  the  legal  conse- 
quence followed,  that  the  United  States  was  to  bear  the  expense  of  re- 
moval and  subsistence,  and  pay  the  spoliation  claims. 

In  case  they  should  so  decide,  |600,000  was  to  be  paid  for  these  pur- 
poses. If  that  was  not  enough,  the  obligation  to  pay  the  residue  still 
remained. 

The  United  States  could  not  be  liable  for  even  the  |600,000,  except 
as  a  consequence  of  the  decision  that  they  were  liable  for  the  whole. 
They  were  liable  for  all  or  none.  The  United  States  say,  "  We  deny 
that  we  are  liable  for  any  part.  If  we  are,  however,  we  appropriate 
$600,000  to  meet  and  comply  with  our  obligation."  The  amount 
being  ibund  insufficient,  the  obligation  remains.  It  never  was  agreed 
that  the  Cherokees  should  partly  remove  and  subsist  themselves.  You 
cannot  satisfy  an  obligation  by  merely  making  an  insufficient  appro- 
priation, when,  to  do  so,  you  first  recognize  the  obligation. 

The  Court  thinks  that  there  was  no  concession  that  the  Cherokee 
construction  of  the  treaty  was  correct. 

It  seems  to  us  that  the  United  States  have  clearly  conceded  that : 

1st.  By  agreeing  to  pay  $600,000  in  1836  toivards  the  expenses  of 
removal  and  the  spoliations. 

2d.  By  agreeing  to  pay  $1,047,067  for  removal  and  subsistence,  by 
act  of  1838,  after  Mr.  Poinsett's  opinion  that  the  United  States  were 
bound  to  pay  the  subsistence  ;  and  by  providing  that  this  should  not 
be  charged  against  the  $5,000,000. 

3d.  By  the  decision  of  the  Senate  in  1850,  on  the  very  point  of 
construction  and  law,  when  their  committee  holding  that,  under  the 
treaty  of  1835  and  act  of  1838,  the  United  States  were  bound  to  pay 
the  subsistence,  and  therefore  still  owed  on  that  score  alone  $189,422  76  ; 
the  Senate,  first,  by  their  decision  and  judgment,  and  Congress  next, 
by  law,  expressly,  and  in  so  many  words,  declared  that  this  had  been 
improperly  charged  to  the  treaty  fund. 

The  Court  thinks,  that  on  the  face  of  the  treaty  of  1835  it  is  clear 
that  the  expenses  of  removal  and  subsistence,  and  the  claims  for  spolia- 
tion, were  to  be  borne  by  the  treaty  fund  under  article  15.  *  *  We 
do  not  think  so,  when  the  facts  and  circumstances  are  all  known.  On 
the  contrary,  that  article  was  framed  to  meet  a  contingency  which  did 
not  occur — that  of  a  decision  by  the  Senate  adverse  to  the  Cherokees. 

The  Court  says,  that  before  this  treaty  was  ratified,  a  question  arose 
as  to  its  construction,  and  caused  the  supplementary  article.  *  *  * 
No  ;  the  question  was  as  to  the  construction  of  the  previous  award  of 
the  Senate. 

The  Court  says,  that  the  supplement  of  1836  contains  no  concession 


J.    K.    ROGERS.  5l^ 

on  the  part  of  the  United  States  that  the  Cherokee  constructioa  was 
correct.  That  the  2fl  article  only  states  the  fact  that  the  supposition  • 
of  the  Cherokees  e^is^eo?.  *  *  Of  course.  The  question  to  be  set- 
tled by  the  Senate  was  as  to  the  meaning  of  the  award  prior  to  the 
treaty  ;  and  the  treaty  and  supplement  were  framed  to  cover  the  con- 
tingpncy  of  a  decision  either  way. 

The  Court  says,  that  if  it  had  been  meant  that  the  United  States 
were  to  pay  tlie  whole  expenses  of  removal  and  subsistence,  there 
would  have  been  an  express  stipulation  to  that  effect.  *  *  There 
was  one  as  express  as  could  be  made,  in  the  8th  article.  The  other 
articles  to  the  contrary  were  to  meet  the  contingency  of  the  Senate 
holding  otherwise.  The  real  question  submitted  was,  whether  the 
$5,000,000  was  tor  the  land  alone. 

The  Court,  it  seems  to  us,  misapprehended  the  scope  of  the  action 
of  Mr.  Poinsett,  and  of  Congress  in  1838.  The  former,  it  seems  to 
us,  gave  it  as  his  opinion,  that  the  United  States  were  legally  bound  to 
remove  and  subsist  the  Indians.  Congress  did  concur  with  him  in 
this  opinion.  They  not  only  made  "  a  simple  appropriation"  of  the 
money  for  removal  and  subsistence,  over  a  million  dollars,  but  they  ex- 
pressly provided  that  it  should  not  come  out  of  the  $5,000,000  ;  and 
they  declare  that  it  is  only  in  aid  of  the  subsistence  of  the  Cherokees. 
How  could  there  be  any  stronger  recognition  of  the  obligation  resting 
on  the  United  States  to  remove  and  subsist  the  Cherokees  ! 

The  Court  says  that  the  decision  of  the  Senate,  in  1850,  was,  that 
"  under  the  circumstances,"  theCherokees  were  entitled  to  $189,422  76 
for  subsistence,  and  that  this  was  "  professedly  not  founded  upon  the 
construction  of  the  treaty,"  but  upon  the  peculiar  circumstances  con- 
nected with  the  transactions  which  had  occurred  between  the  Ross 
party  and  the  United  States.  *  *  *  We  respectfully  think  the  Court 
errs  here.  The  Senate  decided  that  this  sum  of  $189,422  76,  excess 
of  one  year's  subsistance  over  $600  000,  ivas  improperly  charr/ed  to  the 
treaty  fund  by  the  accounting  officers  of  the  treasury.  Under  article 
9  of  the  treaty  of  1846,  these  officers,  assigned  to  tliat  duty  by  act  of 
7th  August,  1848,  were  to  show  what  moneys  had  been  jjroperly  ex- 
pended under  the  treaty  of  1835,  in  order  to  determine  what  was  the 
per  capita  payment  under  that  treaty  and  the  supplement  of  1836. 

The  Senate  therefore  decided^  expressly,  that  in  making  such  settle- 
ment under  that  treaty,  to  see  what  was  due  under  that  treaty,  no 
part  of  the  expense  of  subsistence  was  properly  charged  against  the 
Cherokees  ;  but  the  United  States,  having  paid  $600,000  of  it,  was 
bound  to  pay  the  residue. 

And  this  decision  was  not  founded  on  what  had  occurred  between 
the  Boss  party  and  the  United  States.  The  committee  decided,  that 
although,  on  the  face  of  the  treaty  of  1835,  hj  strict  construction,  the 
subsistence  was  to  be  paid  out  of  the  $5,000,000,  against  even  which 
conclusion  they  stated  strong  reasons,  the  act  of  1838  was  a  clear 
legislative  affirmance  of  what  was  the  original  intention  of  the  Senate 
and  of  the  treaty  of  1835.  The  committee  say  that  the  Secretary  of 
War  agreed  to  consider  the  expenses  of  removal  and  subsistence  "  as 
intended  by  the  treaty  of  1835,  to  be  borne  by  the  United  States," 
and  that  Congress  affirm  his  act,  by  providing  that  no  part  of  the  new 


56  J.    K,    EOGEES. 

appropriation  should  be  taken  from  the  treafy  fund  ;  and  they  addy 
that  the  new  api^ropriation  for  subsistence  was  "  a  discharge,  jpro  tanto. 
of  the  obligation  of  the  government  to  feed  them/'  and  not  final  satis- 
faction_,  as  in  case  of  removal. 

Mr.  Poinsett  had  said  that  the  request  of  the  Cherokees,  that  the 
expense  of  emigration  should  be  borne  by  the  United  States,  o^ight  to 
be  granted,  and  an  application  made  for  such  further  sum  as  might 
be  required  for  tbat  purpose  ;  and  he  only  proposed  to  make  such 
further  allowances  as  it  was  "  believed  were  intended  originally  by 
the  Senate." 

The  committee  was  mistaken  in  saying  that  this  was  a  new  contract 
made  with  the  Koss  party,  or  a  new  consideration  to  induce  them  to 
abide  by  the  treaty.  It  was  a  concession  that  their  construction  was 
correct. 

Whether  it  was  or  not,  it  bound  the  United  States  to  remove  all  the 
Cherokees  then  unremoved,  and  to  pay  the  subsistence  of  all,  removed 
and  unremoved,  for  one  year.  That  was  the  meaning  of  the  expres- 
sion, "■  in  full  for  all  objects  specified  in  the  8th  article,  and  for  the 
further  object  of  aiding  in  the  subsistence  of  the  Indians."  It  was  to 
be  in  full  for  the  removal  of  all  yet  unremoved  ;  it  was  to  aid  in  sub- 
sisting all.  It  decided  nothing  as  to  previous  expenses  of  removals^ 
nor  did  it  assume  to.  It  did  not  say  nor  mean  that  the  Cherokees 
should  bear  them,  and  the  United  States  should  7iot.  But  as  to  the 
subsistence,  it  made  the  United  States  responsible  for  the  whole. 

Accordingly  the  Senate  determined,  in  1850,  that  it  was  improper 
to  charge  any  part  of  the  subsistence  against  the  $5^000,000. 

They  had  previously  determined  the  same  thing  as  to  removals  and 
spoliations,  when  they  appropriated  $600,000  tov/ards  them.  Nothing 
more  remained  to  be  settled. 

If  the  United  States  assumed,  as  we  think  they  did,  to  remove  and 
subsist  the  Indians,  then  they  must  repay  whatever  they  have  taken 
out  of,  or  retained  of,  the  $5,000,000,  to  cover  expenditures  for  those 
purposes.  It  was  optional  with  the  Indian  to  remove  himself,  or  be 
removed  ;  to  subsist  himself,  or  be  subsisted.  If  he  be  removed  and 
subsisted  himself,  the  government  owed  him  |53  33.  If  he  did  not, 
it  was  no  concern  of  his  how  much  it  cost.  Whatever  it  cost,  the 
United  States  had  no  claim  for  it  against  him  or  the  Cherokee  people. 

As  to  the  committee,  if  the  Court  is  correct  in  saying  that  they  were 
appointed  solely  in  the  interest  of  the  Cherokees,  then  the  Cherokees 
should  have  been  left  to  settle  and  fix  their  compensation.  Nothing 
in  the  treaty  authorizes  the  United  States  to  do  it^  or  to  take  the 
money  of  the  Cherokees  to  pay  them  with.  If  they  chose  voluntarily 
to  fix  and  pay  them  their  compensation,  to  the  large  amount  of 
$22,212  76,  the  presumption  must  be  that  it  was  for  services  rendered 
the  United  States,  who  were  not  appointed  to  audit  the  accounts  of 
the  committee  against  thier  own  nation,  for  services.  There  is  no 
possible  ground  on  which  they  can  demand  that  the  Cherokees  shall 
repay  what  they  thus  paid  without  authority. 

ALBERT  PIKE, 

Counsel  for  Petitioner. 


J.    K.    ROGERS.  57 


To  the  honorahle  the  Court  of  Claims  : 

The  decision  of  tlie  Court  in  the  case  of  J.  K.  Rogers  and  others  ?;5. 
the  United  States  turned  adversely  on  a  point  which  was  relied  upon 
by  the  claimant  as  an  admitted  and  settled  one  by  Congress,  viz  :  that 
by  the  supplementary  articles  of  1836  the  United  States  was  bound 
to  defray  the  expenses  of  removal  and  spoliation  ;  that  if  the  sum  of 
$600,000  named  therein  was  not  sufficient,  the  excess,  if  any,  was  not 
properly  or  legally  deductable  from  the  five  million  consideration  as 
the  price  for  the  "  lands  and  possessions"  of  the  Cherokees  ;  in  proof 
of  which  the  act  of  June  12,  1838,  was  cited  as  a  qualified  interpreta- 
tion by  Congress  to  that  effect.  But  the  Court  has  been  pleased  to 
rule  otherwise,  and  decided,  "  to  the  extent  of  that  sum"  (viz  : 
$600,000)  "  the  United  States  became  bound,  but  no  further."  But, 
continue  the  Court,  "it  may  be  said,  and  perhaps  with  justice,  that 
this  did  not  amount  to  a  concession  of  right  on  either  side.  It  was 
doubtless  supposed  that  no  further  difficulty  would  arise.  But,  as 
regards  the  United  States,  the  most  that  can  be  justly  urged  is,  that, 
in  view  of  the  impressions  of  the  Cherokees,  they  so  far  yielded  to 
them  as  to  agree  to  allow  them  the  additional  sum  of  six  hundred 
thousand  dollars.  There  can  be  no  justice  or  propriety  in  saying  that 
they  either  did  or  designed  to  do  more.  On  the  contrary,  the  very 
fact  that  they  limited  the  sum  conclusively  shows  that  they  intended 
thereby  to  limit  the  extent  of  their  obligation." 

This,  as  we  understand  it,  is  the  main  foundation  on  which  the  de- 
cision of  the  Court  rests,  and  takes  from  us  the  act  of  June  12,  1838, 
on  which  we  relied^  as  a  fair  and  equitable  interpretation  by  Congress 
of  an  implied,  if  not  express,  obligation  of  the  United  States  to  pay 
the  expenses  of  removal  and  spoliations  beyond  the  sum  of  $600,000, 
stipulated  in  the  supplementary  articles,  should  these  two  expendi- 
tures amount  to  more. 

But  as  doubts  were  entertained  at  the  time,  and  are  still  entertained 
on  this  point,  which  doubts  "  did  not  amount  to  a  concession  of  right 
on  either  side,  may  we,  without  doing  violence  to  the  treaty,  right- 
fully, as  to  a  known  and  admitted  fact  that  existed  before  and  at  the 
date  of  the  treaty  of  1835,  inquire,  what  was  the  question  again  sub- 
mitted to  the  Senate  for  their  consideration  and  decision  by  the  first 
article  of  that  treaty  and  the  supplement  thereto  ?  A  very  slight  at- 
tention to  the  history  of  the  negotiation  will  place  this  subject  in  its 
true  light,  and,  if  we  are  not  very  much  mistaken,  we  think  some- 
thing more  will  be  made  to  appear  than  the  mere  supposition  of  the 
Cherokee  people,  "  that  the  sum  of  five  millions  of  dollars  mentioned 
in  the  first  article  of  the  treaty,"  "  lo as  not  intended  to  include  the  cost 
of  removal,  or  the  vcdue  of  certain  claims  ivhich  many  of  their  j^eople  had 
against  the  citizens  of  the  United  States  ;"  "  but  there  is  no  concession 
on  the  part  of  the  United  States  that  the  supposition  of  the  Cherokee 
people  was  well  founded."  This,  with  all  due  deference  to  the  Court, 
is  a  question  of  fact,  and  not  of  supposition,  as  stated  in  the  supple- 
ment, and  is  susceptible  of  the  clearest  proof  to  the  contrary.  In 
order,  then,  to  discover  with  certainty  the  intention  of  the  makers  of 
the  treaty,  may  we  with  propriety  go  back  to  that  history.      Dwarris, 


58  ■  J     E.    ROGERS. 

on  Statutes,  page  694,  says:  ''In  the  exposition  of  a  statute,  the 
leading  clue  to  the  construction  to  he  made  is  the  intention  of  the 
legislature,  and  that  may  he  derived  from  different  signs.  As  a  primary 
rule,  it  is  to  he  collected  from  the  words  ;  when  the  words  are  not 
explicit,  it  is  to  he  gathered  from  the  occasion  and  necessity  of  the 
law,  heing  the  causes  which  moved  the  legislature  to  enact  it.  The 
same  rule,  we  take  it,  is  applicable  to  the  construction  of  treaties." 

In  order,  therefore,  to  ascertain  and  determine  this  fact,  we  go, 
first,  to  the  original  proposition  submitted  by  the  Cherokee  delega- 
tion, February  25,  1855,  to  the  Secretary  of  War,  an  extract  of  which 
is  as  follows  : 

"We  propose,  therefore,  to  meet  the  proposition  of  the  President 
for  an  arrangement  on  the  basis  of  a  gross  sum  being  paid  to  our 
nation  for  its  title  to  all  the  lands  lying  within  the  charter  limits  of 
Georgia,  North  Carolina,  Tennessee,  and  Alabama,  leaving  to  the 
nation  all  the  arrangements  for  indemnifying  the  individual  rights  of 
its  own  citizens  for  their  removal  and  ultimate  residence,  on  the  fol- 
lowing terms  as  the  general  basis,  to  wit :  That  the  United  States 
will  stipulate  to  pay  to  the  Cherokee  nation  east  of  the  Mississippi, 
for  a  cession  of  its  territory,  the  gross  sum  of  twenty  millions  of  dol- 
lars, and  forthwith  remove  all  the  white  settlers  from  that  part  of  the 
territory  lying  within  the  charter  limits  of  North  Carolina,  Tennessee, 
and  Alabama,  and  to  protect  the  Cherokees  from  tfie  operation  of  the 
State  laws,  and  the  exercise  of  jurisdiction  over  them  upon  the 
Cherokee  territory  for  five  years,  unless  the  Cherokees  shall  find  it 
convenient,  and  will  remove  voluntarily  previous  to  that  time  ;  and 
shall  protect  the  Cherokee  citizens  from  being  turned  off"  from  their 
possessions  and  improvements  within  the  limits  of  Greorgia  during 
said  term  of  years,  and  to  cause  such  as  have  been  dispossessed  under 
the  laws  of  Georgia  to  be  restored  forthwith  to  possession." 

"  That  the  United  States  shall  pay  to  the  Cherokees  for  all  losses 
sustained  by  them  from  the  acts  of  the  adjoining  States  and  their  citi- 
zens, in  violation  of  the  laws  of  the  United  States  and  treaties  sub- 
sisting with  the  Cherokee  nation,  and  an  indemnity  for  all  just  claims 
arising  out  of  the  treaties  of  1817  and  1819,  for  reservations  of  land 
of  which  they  have  been  deprived  contrary  to  provisions  of  those 
treaties,  and  secure  to  the  Cherokee  nation  an  indemnity  tor  the  con- 
tract stipulated  with  and  secured  by  the  treaty  of  1819  to  the  Unicai 
Turnpike  Company.  And,  also,  secure  to  the  Cherokee  nation  such 
annuities  and  school  funds  as  have  been  stipulated  and  provided  for 
in  former  treaties,  by  investment  of  the  same  in  some  profitable  stock, 
to  the  credit  and  interest  of  the  nation." — (Doc.  No.  286,  Ho.  of 
Eeps.  24th  Congress,  1st  session,  pages  127  and  128.) 

This  was  a  proposition  for  a  cession  of  the  Cherokee  territory  for 
the  gross  sum  of  twenty  millions  of  dollars,  and  payment  additional 
for  all  losses  from  acts  of  the  adjoining  States'and  their  citizens,  and 
compensation  for  reservations  of  land  arising  out  of  the  treaties  of 
1817  and  1819,  &c.  The  determination  of  the  Cherokees,  as  the  latter 
part  of  these  proposals  show,  was  to  remove  beyond  the  limits  and 
jurisdiction  of  the  United  States,  and  to  purchase  a  territory  for  their 
future  residence  from  the  government  of  Mexico.     The  fact  is  well 


J     K.    ROGERS.  59 

known  to  the  Cherokeee  people,  and  is  regarded  by  them  as  part  of 
their  history.  The  terms  of  cession,  however,  were  considered  too 
extravagant  by  the  President,  and  on  February  27,  1835,  the  delega- 
tion addressed  the  Secretary  of  War  the  following  note: 

"Having  been  informed  by  Wm.  H.  Underwood,  esq.,  and  others, 
that  the  President  considers  the  terms  of  our  propositions  to  be  too 
extravagant,  we  beg  leave  to  remind  him  that  he  has  often  remarked 
that  he  would  grant  us  as  liberal  terms  as  the  Senate  or  the  friends  of 
the  Indians  would  be  willing  to  allow.  We  would,  therefore,  respect- 
fully ask  that  our  propositions  be  submitted  to  the  Senate  by  the  Presi- 
dent, in  order  that  the  sense  of  the  honorable  body  may  be  had  on 
them." — (Same  doc,  page  129.) 

The  request  contained  in  this  note  to  submit  the  "  propositions  "  of 
the  delegation  to  the  Senate,  was  not  a  new  or  strange  one  to  the  Presi- 
dent, as  he  had  often  remarked  to  the  delegation  before,  "that  he 
would  grant  (the  Cherokees)  as  liberal  terms  as  the  Senate  or  the 
friends  of  the  Indian  would  be  willing  to  allow."  This  latter  propo- 
sition of  the  delegation  was  acceded  to  by  the  President,  upon  one 
condition  and  that  was,  that  the  delegation  would  give  a  written  pledge 
to  abide  the  award  of  the  Senate.  This  pledge  was  finall}^  given  by 
the  delegation  in  a  note  addressed  to  the  Secretary  of  War  of  Febru- 
ary 28,  1835,  to  the  following  purport : 

"Having  submitted  a  proposition  for  a  final  adjustment  of  our  diffi- 
culties with  the  government  of  the  United  States,  and  understanding 
that  the  President  deems  it  to  be  too  extravagant,  we  must  beg  that 
the  subject  be  referred  to  the  Senate  for  its  sense  on  the  question  ;  the 
President  having  often  told  us  that  he  was  disposed  to  treat  us  with 
liberal  justice,  and  that  he  would  go  as  far  as  the  Senate  would  allow 
him  in  regard  to  money  matters." 

"We,  therefore,  trust  that  he  will  adopt  this  course.  Being  ex- 
tremely desirous  that  this  unhappy  controversy  might  be  speedily 
adjusted,  and  deeply  sensible  of  our  dependent  condition,  and  con- 
fiding in  the  liberal  justice  of  the  United  States  government,  we  are 
prepared,  so  far  as  ive  are  concerned,  to  abi  e  the  award  of  the  sense 
of  the  American  Senate  upon  our  proposition,  and  to  recommend  the 
same  for  the  final  determination  of  our  nation." — (Ibid,  page  141.) 

Thus,  the  "propositions"  of  the  delegation  as  contained  in  their 
letter  to  the  Secretary  of  War  of  February  25,  1835,  being  about  to 
be  submitted  by  the  President  to  the  Senate  for  their  decision  as  um- 
pire, and  both  parties  agreeing  to  abide  the  award  of  the  Senate,  the 
delegation  thought  proper  to  memorialize  the  Senate  on  that  behalf, 
which  they  did  March  3,  1835,  an  extract  of  which  is  here  inserted  : 

"The  undersigned,  delegates  of  the  Cherokee  nation,  beg  leave  to 
represent  to  your  honorable  body  that,  since  the  presentation  of  the 
memorial  of  their  nation  through  them,  on  the  19th  day  of  January 
last,  certain  propositions  have  been  made  by  them  to  the  Executive, 
as  a  basis  by  which  they  were  willing  to  enter  into  an  arrangement, 
subject  to  the  ratification  of  their  nation,  for  a  final  termination  of  their 
difficulties  in  relation  to  their  affairs.  And  upon  being  informed  that 
those  propositions  did  not  receive  the  assent  of  the  President,  the  dele- 
gation then  respectfully  requested  him,  through  the  War  Department, 


60  J.   K    EOGERS. 

to  submit  the  same  before  your  honorable  body,  in  order  that  the 
sense  of  the  Senate  might  be  had  on  them,  inasmuch  as  he  had  often 
remarked  to  the  delegation,  that  he  was  disposed  to  treat  their  nation 
with  liberal  justice,  and  that  he  would  go  as  far  as  your  honorable 
body  would  allow  him  in  in  money  matters.  On  the  morning  of  the 
28th  ultimo,  the  delegation,  in  compliance  with  a  special  verbal  mes- 
sage from  the  honorable  Secretary  of  War,  waited  on  him  in  his  office; 
and  at  that  interview  the  honorable  Secretary  urged  upon  them  the 
necessity  of  their  stating  in  writing  to  the  department,  before  their 
propositions  could  be  submitted  by  the  President,  that  so  far  as  they 
were  concerned,  they  would  abide  the  award  of  the  American  Senate 
upon  their  propositions,  and  that  they  would  recommend  the  same  for 
the  final  determination  of  their  nation.  The  honorable  Secretary  then 
left  the  delegation  in  his  office  to  make  up  their  minds  on  the  subject, 
until  he  would  return  from  a  visit  to  the  executive  department  ;  and 
upon  his  return,  the  delegation  had  a  letter  prepared  to  meet  his  re- 
quest, and  after  placing  it  into  his  hands,  he  assured  the  delegation 
that  their  propositions  would  be  cheerfully  submitted,  and  that  the 
President  had  expressed  himself  to  be  still  disposed  to  'go  as  far  as  the 
Senate.'  Upon  these  distinct  assurances  and  understanding,  the  dele- 
gation took  leave  of  the  honorable  Secretary." — (Ibid,  page  125.) 

This  extract  is  a  confirmation  of  all  that  has  heretofore  been  stated 
with  regard  to  the  fact  of  the  submission  by  the  President  of  the 
"propositions"  of  the  Cherokee  delegation  to  the  arbitrament  of  the 
Senate.  If  any  doubts,  however,  existed  on  this  point,  those  doubts 
were  put  at  rest  by  the  following  extract  of  a  letter  to  the  Secretary  of 
War,  bearing  date  March  6,  1835,  and  addressed  to  the  delegation,  in 
which  he  formally  communicates  to  them  the  decision  of  the  Senate. 
This  decision  was  in  the  form  of  a  resolution,  and  the  words  in  which 
it  is  written  admit  of  but  one  construction, 

"Gentlemen:  In  your  letter  of  the  28th  ultimo,  you  stated  your 
readiness  to  accept  for  yourselves,  and  to  recommend  to  the  Cherokee 
kee  people  to  accept  such  a  sum  for  their  claims  east  of  the  Mississippi 
river  asthe  Senate  of  the  United  States  might  deem  just.  The  Senate 
have,  by  a  resolution,  stated  as  their  opinion,  that  "  a  sum  not  exceed- 
ing five  millions  of  dollars  should  he  paid  to  the  Gherohee  Indians  for  all 
their  lands  and  possessions  east  of  the  Mississippi  river. ' ' 

"The  President  wishes  now,  as  he  has  always  done  heretofore,  to 
treat  with  you  in  a  spirit  of  candor  as  well  as  liberality.  He  has 
therefore  directed  me  to  communicate  to  you  at  once  the  resolution  of 
the  Senate^  and  to  state  his  willingness  to  enter  into  a  negotiation  with 
you  for  the  cession  of  all  your  claims  east  of  the  Mississippi,  upon  con- 
dition that  the  whole  amount  of  the  consideration  to  be  given  shall 
not  exceed  the  above  mentioned  sum.  This  you  were  before  informed 
should  be  done,  and  the  pledge  will  be  redeemed  with  fidelity." — (Ibid, 
pages  142,  143.) 

On  the  same  day  (March  6)  the  delegation  responded  as  follows  : 

"  Your  letter  of  this  date  is  received,  and  we  regret  that  you  did 
not  submit  for  our  information  the  whole  proceedings  of  the  Senate  in 
relation  to  the  .propositions  which  we  had  the  honor  of  presenting  for 
the  consideration  of  the  President,  and  which,  upon  placing  into  your 


J.    K.    ROGERS.  61 

hands  our  letter  of  the  28th  ultimo,  we  were  di.^tinctly  informed  by 
you  would  he  cheerfully  submitted.  To  a  full  and  clear  understand- 
ing of  the  entire  action  of  the  Senate  on  our  case,  we  claim  it  as  a 
matter  of  justice  to  our  nation,  that  the  same  should  be  laid  before  us  ; 
we  must,  therefore,  respectfully  ask  the  favor  of  you  to  have  a  full 
transcript  of  the  same  made  out  and  sent  to  us.  We  would  also  beg 
leave  to  inquire  whether  we  are  to  understand  from  your  communica- 
tion of  this  date,  that  the  five  millions  of  dollars  resolved  by  the  Senate 
"  should  be  paid  to  the  Cherokee  Indians  for  all  their  lands  and  pos- 
sessions east  of  the  Mississippi  river,  as  embracing  also  the  expenses 
for  transportation  and  subsistence  in  removal,  and  for  subsistence  for 
twelve  months  after  their  arrival  at  their  new  homes  ;  for  blankets, 
guns,  &c.,  or  whether  that  sum  is  an  ofier,  as  really  appears  i'rom  the 
resolution  to  be,  only  for  the  extinguishment  of  the  Cherokee  title  to 
the  lands  east  of  the  Mississippi  river,  and  for  the  houses  and  improve- 
ments of  the  Cherokee  inhabitants  situated  thereon  ;  and  that  the 
United  States  will,  in  addition,  pay  for  the  expense  of  transportation 
and  subsistence  in  their  removal,  &c.,  the  same  as  have  been  provided 
for  the  general  plan  for  Cherokee  removals,  which  have  been  adopted 
from  the  provisions  of  the  treaty  of  the  6th  of  May,  1828,  between  the 
United  States  and  that  portion  of  the  Cherokees  residing  west  of  the 
Mississippi  river  ;  and,  also,  whetlier  an  additional  extent  of  territory 
will  be  added  to  the  one  already  laid  off  for  the  Cherokees  west  of  that 
river,  and  of  what  extent.  It  is  indispensably  necessary  to  candor 
and  justice  that  all  these  points  should  be  clearly  understood  on  both 
sides  ;  and  it  is  utterly  impossible  for  us  to  proceed  further  until  we 
do  understand  them." — (Ibid,  pages  143-'4.) 

The  delegation,  it  must  be  admitted,  were  in  justice  and  good  faith 
as  much  entitled  to  the  benefit  of  the  decision  of  the  umpire  as  the 
Secretary  of  War  or  the  President  of  the  United  States,  and  should 
have  been  furnished,  as  requested,  with  "  a  full  transcript  of  the  pro- 
ceedings of  the  Senate"  on  which  the  award  or  resolution  was  adopted. 
This  was  not  only  due  to  them,  to  a  full  understanding  "  of  the  entire 
action  of  the  Senate"  on  their  case,  but  also  as  a  matter  of  justice  to 
their  nation,  that  the  same  should  have  been  laid  before  them.  That 
this  was  not  done  is  no  fault  of  theirs,  as  will  appear  from  the  follow- 
ing extract  of  a  letter  of  the  Secretary  of  War,  addressed  to  them 
March  7,  1835  :  _ 

"  Gentlemen  :  I  have  just  received  your  letter  of  this  date.  The 
sum  of  five  millions  dollars,  which  is  offered  for  your  claims  east  of  the 
Mississippi,  will,  as  I  have  already  informed  you,  be  in  full  for  your 
entire  cession.  The  application  of  it  will  be  such  as  you  desire,  a  just 
regard  being  had  to  individual  rights.  Nothing  more  will  be  paid 
for  removal  or  for  any  other  purpose  or  object  whatever.  In  giving 
to  you  the  full  value  of  your  property,  the  United  States  comply  with 
all  the  demands  of  justice  upon  them." 

"  This  letter  closes  the  intercourse  in  writing  between  us." — (Ibid, 
page  145.) 

The  statement  contained  in  the  above  letter,  and  the  refusal  to  fur- 
nish the  delegation  with  a  transcript  of  the  proceedings  of  the  Senate 
in  their  case,  together  with  the  threat  verbally  made  by  the  Secretary 


62  J.    K.   ROGERS. 

of  War  to  negotiate  with  another  and  unauthorized  delegation  then 
present  in  the  city,  as  indicated  in  the  protest  contained  in  the  latter 
part  of  the  last  letter  of  the  delegation  to  the  Secretary  of  March  9, 
1835,  broke  off  the  negotiation  in  these  words  : 

"  And  if  the  department  persist  in  the  unexpected  and  most  extra- 
ordinary course  which  you  intimated  to  us  this  morning  was  about  to 
be  adopted,  that  is,  of  entering  into  a  treaty  with  John  Ridge  and 
others,  unauthorized  individuals  who  are  here,  for  an  entire  cession 
of  the  Cherokee  lands,  &c.,  east  of  the  Mississippi  river,  and  providing 
for  the  application  of  the  money  proposed  to  be  given  for  the  same, 
the  great  object,  so  earnestly  pressed  on  both  sides,  for  reconciliating 
and  restoring  harmony  and  good  feeling  of  all,  and  thereby  termi- 
nating the  Cherokee  difficulties  satisfactorily,  will  most  assuredly  be 
defeated  by  your  own  acts.  And^  as  the  duly  authorized  delegation 
of  the  Cherokee  nation  here,  we  do  most  solemnly  protest  against  any 
such  arrangements  being  entered  into  with  those  individuals.  In 
your  letter  of  the  '7th  instant,  closing  all  further  intercourse  in  writing 
between  us,  you  distinctly  informed  us  that  the  application  of  the 
$5,000,000  which  is  offered  for  our  lands  and  possessions  east  of  the 
Mississippi  river  will  be  such  as  we  desire — a  just  regard  being  had  to 
individual  rights.  Well,  then,  if  the  nation  will  consent  to  treat  and 
accept  of  the  sum  offered,  let  its  own  wishes  in  regard  to  the  applica- 
tion be  consulted  and  adopted — a  just  regard  being  had  to  individual 
rights.  And  on  the  part  of  the  delegation  here,  we  again  repeat  that 
we  are  prepared  to  comply  in  good  laitli  with  every  promise  which 
we  have  made  to  the  department  on  the  subject,  provided  you  do  the 
same  on  your  part,  and  will  not  throw  any  obstacles  in  our  way." — 
(Ibid,  pages  145-'6.) 

It  is  to  be  regretted,  even  at  this  late  period,  that  the  delegation 
was  not  furnished  with  a  full  transcript  of  the  action  of  the  Senate  in 
their  case  by  the  Secretary  of  War,  as  requested  by  them.  This 
request,  no  doubt,  would  have  been  complied  with  by  the  Secretary 
had  the  injunction  been  removed  by  the  Senate  from  their  proceedings 
in  that  case.  Then  there  could  have  been  no  just  cause  on  their 
part  for  refusing  to  enter  into  a  treaty  at  that  time,  by  which  all 
doubts  would  have  been  removed  as  to  the  true  interpretation  of  the 
two  terms  used  in  the  resolution  of  the  Senate — "  lands  and  posses- 
'  sions" — to  say  nothing  of  the  money  that  would  have  been  saved  to 
the  United  States,  and  the  many,  very  many,  evil  and  devastating 
consequences  resulting  from  it  to  the  Cherokee  people.  But  the  in- 
junction was  not  removed,  and  has  not  been,  as  we  are  informed,  up 
to  the  present  day.  Therefore,  we  are  left  to  infer  that  the  Senate 
intended  to  do  just  what  their  resolution  says,  viz:  that  "a  sum 
not  exceeding  five  millions  of  dollars  should  be  paid  to  the  Cherokee 
Indians  for  all  their  lands  and  possessions  east  of  the  Mississippi  river." 
The  resolution,  as  reported  by  the  Secretary  of  War  in  his  letter  of 
March  6,  1835,  to  the  delegation,  and  as  inserted  in  the  1st  article 
of  the  treaty  of  1835,  is  a  correct  transcript  or  copy  as  we  are  told,  by 
those  who  are  in  a  position  most  likely  to  know,  is  all  that  the  jour- 
nal shows  of  the  proceedings  of  the  Senate  on  its  adoption. 

If,  therefore,  the  fact  be  true  as  stated,  there  can  be  no  doubt  as  to 


J     K    EOGERS.  63 

the  legal  interpretation  of  the  words  used  in  the  resolution  ;  and  it 
strikes  us  that  the  Secretary  of  War  was  wrong  in  the  construction 
which  he  placed  upon  them.  Five  millions  of  dollars  was  the  ulti- 
matum authorized  to  be  given  by  the  Senate.  For  what  purpose,  we 
would  ask,  was  that  sum  of  money  to  be  given  ?  The  answer  is  found 
in  the  resolution  itself,  viz  :  "for  all  the  lands  and  possessions  of  the 
Cherokee  Indians  east  of  the  Mississippi  river."  In  the  absence,  then, 
of  all  proof  to  the  contrary,  the  delegation  had  the  right,  as  we  now 
have,  to  insist  upon  the  legal  interpretation  of  those  terms.  Bouvier, 
in  his  Law  Dictionary,  says  of  land:  "  This  term  comprehends  any 
ground,  soil  or  earth  whatsoever,  as  meadows,  pastures,  woods,  waters, 
marshes,  furze  and  heath.  It  has  an  indefinite  extent  upwards  as  well 
as  downwards  ;  therefore  land  legally  includes  all  houses  and  other 
buildings  standing  or  built  on  it,  and  whatever  is  in  a  direct  line  be- 
tween the  surface  and  the  centre  of  the  earth,"  &c.  The  meaning  of 
both  terms  are  expressed  in  one,  and  as  ^'  lands  and  possessions"  go 
together,  and  land  being  a  common  law  term,  Dawris  on  Statutes, 
page  694^  says  :  ''  If  a  statute  make  use  of  a  word,  the  meaning  of 
which  is  well  known,  and  has  a  certain  definite  sense  at  the  common 
law^  the  word  shall  be  expounded  and  received  in  the  sense  in  which 
it  is-understood  at  the  common  law." 

The  Senate  having  use  in  their  award  the  terms  "  lands  a,nd  jjosses- 
sions,"  and  having  left  no  clue  or  record  evidence  to  show  that  they 
intended  to  convey  any  other  meaning  than  the  terms  signify,  we 
claim  the  benefit  of  their  legal  interpretation  to  the  very  letter.  Does 
"lands"  signify  "removal  and  spoliations,"  or  does  "possessions" 
include '■' subsistence  f"  Certainly  not.  Then  we  contend  that  the 
implication  of  the  Secretary  cf  War  to  the  contrary,  was  wholly  un- 
tenable and  inadmissable,  and,  therefore,  his  instructions  to  the  com- 
missioners who  finally  negotiated  the  treaty  of  NewEchotawas  given 
upon  a  mistaken  supposition,  as  we  shall  be  able  to  show  by  unques- 
tionable proof. 

It  is  proper  here  to  state,  that  notwithstanding  the  letter  of  the  dele- 
gation of  March  9,  1835,  to  the  Secretary  of  War,  protesting  against 
his  negotiating  with  John  Ridge  and  others  then  present,  that  protest 
was  disregarded,  and  a  treaty  concluded  with  them  on  the  14th  day  of 
March,  1835,  and  sent  out  to  the  nation  for  ratification.  Accompa- 
nying the  treaty  was  an  address  or  talk  to  the  Cherokee  people  from 
General  Jackson  himself,  in  which  he  says  : 

"  The  whole  subject  has  been  taken  into  consideration,  and  an  ar- 
rangement has  been  made  which  ought  to  be,  and  I  trust  will  be, 
entirely  satisfactory  to  you.  The  Senate  of  the  United  States  have 
given  their  opinion  of  the  value  of  your  possessions,  and  this  value  is 
insured  to  you  in  the  arrangement  which  has  been  prepared.  Mr. 
John  Ross,  and  the  party  who  were  with  him,  expressed  their  determi- 
nation to  accept,  as  far  as  they  were  concerned,  such  a  sum  as  the 
Senate  might  consider  just,  and  promi.^ed  to  recommend  and  sujiport 
the  same  in  your  general  council.  The  stipulations  contained  in  this 
instrument  are  designed  to  afibrd  due  protection  to  private  rights,  to 
make  adequate  provision  for  the  poorer  class  of  your  people,  to  provide 
for  the  removal  of  all,  and  to  lay  the  foundation  of  such  social  and 


64  '  J.    K.    ROGERS. 

political  establishments  in  your  new  country  as  will  render  you  a 
happy  and  prosperous  people.  Why,  then,  should  any  honest  man 
among  you  object  to  removal  ?  The  United  States  have  assigned  to 
you  a  fertile  and  extensive  country,  with  a  very  fine  climate  adapted 
to  your  habits,  and  with  all  the  other  natural  advantages  which  you 
ought  to  desire  or  expect." 

"  I  shallj  in  the  course  of  a  short  time,  appoint  commissioners  for 
the  purpose  of  meeting  the  whole  body  of  your  people  in  council. 
They  will  explain  to  you  more  fully  my  views,  and  the  nature  of  the 
stipulations  which  are  offered  to  you." 

"  These  stipulations  provide — 

"1st.  For  an  addition  to  the  country  already  assigned  to  you  west 
of  the  Mississippi,  and  for  the  conveyance  of  the  whole  of  it,  by  patent, 
in  fee  simple,  and  also  for  the  security  of  the  necessary  political 
rights,  and  for  preventing  white  persons  from  trespassing  upon  you." 

"  2d.  For  the  payment  of  the  full  value  to  each  individual  of  his 
possession  in  Georgia,  Alabama,  North  Carolina,  and  Tennessee." 

"  3d.  For  the  removal,  at  the  expense  of  the  United  States,  of  your 
whole  people  ;  for  their  subsistence  for  a  year  after  their  arrival  in 
their  new  country,  and  for  a  gratuity  of  one  hundred  and  fifty  dollars 
to  each  person." — (Doc.  286,  pages  43,  44,  24th  Congress,  1st  session. 
House  of  Representatives.) 

Now,  General  Jackson  either  designed  to  do  what  he  said  he  would 
do,  or  he  intended  to  practice  a  fraud.  We  know  he  is  dead,  but  his 
language  lives,  and  who  is  bold  enough  at  the  present  day  to  say  that 
he  designed  or  intended  the  latter,  where  he  promised  the  former? 
No  one,  we  presume,  would  pretend  to  say  so,  and  his  words  were 
stated  just  as  they  appear,  by  his  commissioners  through  their  inter- 
preter, to  the  Cherokee  people  assembled,  and  they  so  understood 
them.  Tbat  the  Senate  intended  to  give  the  five  millions  of  dollars 
named  in  their  resolution,  for  the  "  lands  and  possessions"  of  the  Chero- 
kees,  there  can  be  but  little  doubt.  The  fact  will  be  made  apparent 
by  a  letter  addressed  to  the  President,  by  three  senators  who  voted 
for  the  resolution  in  executive  session.  This  letter  we  shall  have  oc- 
casion to  notice  more  particularly  when  we  come  to  consider  the  sup- 
plementary articles  of  the  treaty. 

In  compliance  with  the  promise  of  the  President  to  appoint  com- 
missioners for  the  purpose  of  meeting  the  "  luhole  body"  of  the  Chero- 
kee people  "  in  cou,ncil,"  said  commissioners  were  appointed,  as  the 
following  letter  of  instruction  from  the  Secretary  of  War,  dated,  April 
2,  1835,  and  addressed  to  Rev.  John  F.  Schermerhorn,  Utica,  New 
York,  and  Gov.  William  Carroll,  Nashville,  Tennessee,  will  show : 

"  Gentlemen:  I  have  the  honor  to  inform  you  that  the  President 
has  appointed  you  commissioners  to  negotiate  with  the  Cherokee 
Indians  east  of  the  Mississippi  river. 

A  copy  of  the  arrangement  recently  made  between  some  individuals 
of  the  Cherokee  tribe  and  Mr.  Schermerhorn  is  herewith  enclosed, 
together  with  copies  of  certain  other  papers,  which  may  be  useful  to 
you  in  the  performance  of  your  duties.  I  enclose  also  the  address  of 
the  President  of  the  Cherokee  people,  which  you  will  cause  to  be  read 


J.    K.    ROGERS.  65 

to  them  in  open  council,  and  enforce  by  such  topics  as  may  occur  to 

You  are  aware  of  the  importance  of  removing  these  Indians,  and  are 
acquainted  generally  with  the  history  of  our  intercourse  with  them, 
and  of  the  efforts  which  have  been  made  for  the  termination  of  the 
difficulties  in  which  they  have  been  placed.  I  need  not,  therefore, 
enlarge  upon  these  subjects. 

The  provisional  treaty  contains  the  general  terms  which  the  Presi- 
dent is  disposed  to  offer  to  the  Indians,  and  he  is  desirous  that  the 
Cherokee  people  should  assent  to  this  arrangement  without  making 
any  change  in  its  stipulations.  Still,  however,  he  would  not  object 
to  such  alterations  as  might  be  deemed  essential  by  them,  and  which 
would  not  conflict  with  those  principles  which  he  deems  indispensable 
to  a  proper  settlement  of  this  difficult  and  protracted  affair.  I  shall 
proceed  to  state  to  you  those  conditions,  from  which  the  President 
will  not  depart.  Within  these  limits,  if  it  will  tend  to  conciliate 
the  Indians,  and  to  insure  their  assent  to  a  treaty,  you  are  authorized 
to  make  such  changes  as  you  may  deem  proper  and  as  they  may 
demand. 

The  Senate  have,  by  resolution,  stated  it  as  their  opinion,  ''  that  a 
sum  not  exceeding  five  millions  of  dollars  ($5,000,000)  might  probably 
be  allowed  to  these  Indians  for  the  cession  of  their  entire  claims  east 
of  the  Mississippi  river." 

With  all  due  deference  to  the  Secretary  of  War,  we  beg  to  say  there 
are  no  such  words  as  '^  'probable"  and  '■^claims"  in  the  resolution  of 
the  Senate,  and  we  have  italicized  them  to  indicate  the  fact.     The 
resolution  as  communicated  by  the  Secretary  of  War,  in  his  letter  of 
March  6,  1835;  to  the  Cherokee  delegation,  and  as  inserted  in  the  1st 
article  of  the  treaty  of  1835,  is  in  these  words,  viz  :   "  That  a  sum  not 
exceeding  five  millions  of  dollars  shall  be  paid  to  the  Cherokee  In- 
dians for  all  their  '  lands  and  possessions  '  east  of  the  Missisippi  river. ' " 
How  "  lands"  and  "  possessions"  can  be  construed  or  even  tortured  to 
mean  "  might  probably  be  allowed  to  these  Indians  for  the  cession  of 
their  entire  claims  east,"  we  leave  it  for  the  Secretary  of  War  and 
those  who  agree  with  him  to  show.     We  know  of  no  rule,  either  legal 
or  arbitrary,  that  will  admit  of  such  construction.     The  President,  in 
his  talk  to  the  Cherokees,  in  speaking  of  the  resolution  of  the  Senate, 
says  :   "  The  Senate  of  the  United  States  have  given  their  opinion  of 
the  value  of  your  possessions  ;"  thus  showing  that  he  understood  the 
resolution  of  the  Senate  differently ;  and  the  original  proposition  of  the 
Cherokee  delegation  of  February  25,  1835,  on  which  the  action  of  the 
Senate  was  predicated,  does  not  warrant  or  justify  such  an  interpreta- 
tion.    How,  then,  is  the  remainder  of  the  Secretary's  instructions  to 
be  justified  ?     He  says  : 

"Prior  to  the  adoption  of  this  resolution,  Mr.  John  Ross  and  his 
party,  who  were  then  in  this  city,  avowed  their  determination  to  abide 
by  the  decision  of  the  Senate  on  this  point,  and  to  accept  such  a  con- 
sideration as  that  body  might  deem  reasonable.  After  the  Senate, 
however,  had  acted  upon  the  matter,  that  party  declined  acquiescence^ 
and  would  not  enter  into  an  arrangement,  as  they  had  before  promised 
to  do.     Among  the  papers  enclosed  to  you^  you  will  find  those  neces- 

Mis,  Doc.  94 5 


$$  '  3    K    EOGEES. 

sary  to  a  full  knowledge  of  this  affair.  You  will,  therefore,  under  n(t 
circumstances  increase  the  amount  of  the  consideration  to  be  given. 
If,  however,  the  Indians  should  prefer  to  receive  the  whole  amount^ 
viz:  five  millions  of  dollars,  in  lieu  of  the  sum  of  four  millions  five 
hundred  thousand  dollars,  and  of  the  additional  tract  west  of  the  Mis- 
sissippi, estimated  at  eight  hundred  thousand  acres,  you  are  at  liberty 
to  give  them  the  whole  sum  in  money,  and  to  withhold  this  additional 
tract." 

We  have  already  shown  the  difference  in  phraseology  and  meaning 
of  the  resolution  actually  passed  by  the  Senate,  and  the  terms  used  by 
the  Secretary  of  War,  in  his  instructions  to  the  commissioners,  pur- 
porting to  give  the  meaning  of  that  resolution.     The  terms  "■lands" 
and  "possessions,"  as  remarked,  will  not  admit  of  the  construction 
attempted  to  be  put  upon  them  by  the  Secretary,  without  doing  vio- 
lence to  their  plain  common  sense  meaning,  to  say  nothing  of  their 
legal  signification.      Neither  will  the  original  proposition  of  the  dele- 
gation authorize  such  a  construction.     The  proposal  was  for  a  cession 
of  the  Cherokee  territory  east  of  the  Mississippi  river,  for  the  gross 
sum  of  twenty  millions  of  dollars  ;  leaving  to  the  nation  all  the  ar- 
rangements for  indemnifying  the  individual  rights  of  its  own  citizens, 
for  their  removal  and  ultimate  residence,  &c.  ;  and,  in  addition  to  this, 
that  the  United  States  should  pay  the  Cherokees  for  all  losses  sus- 
tained by  them  from  the  acts  of  the  adjoining  States  and  their  citi- 
zens, in  violation  of  the  laws  of  the  United  States  and  treaties  sub- 
sisting with  the  Cherokee  nation,  and  all  just  claims  arising  out  of 
the  treaties  of  1817  and  1819  for  reservations  of  land,  &g.     This  was 
the  substance  of  the  proposals  submitted  by  the  delegation  to  the 
Secretary,  and  declined  by  the  President,  on  account  of  their  extrava- 
gance, but  which,  upon  agreement,  was  finally  submitted  by  the  Presi- 
dent for  the  arbitrament  of  the  Senate — the  delegation  agreeing  to 
abide  the  award  of  the  Senate  on  their  proposition,  and  to  recommend 
the  same  for  the  final  determination  of  their  "  nation."     The  decision 
of  the  Senate  I'ell  far  short  of  twenty  millions  of  dollars,  and  author- 
ized o?iZ// the  payment  of  one-third  of  that  sum  to  the  Cherokee  na- 
tion.    When  the  result  of  the  decision  of  the  Senate  was  communi- 
cated to  the  delegation  by  the  Secretary  of  War,  they  did  not  decline 
acquiescence,  as  stated  by  him  in  his  instructions  to  the  commission- 
ers, but  simply  stated  that  "to  a  full  and  clear  understanding  of  the 
entire  action  of  the  Senate  on  their  case,  they  claimed  it  as  a  matter 
of  justice  to  their  nation  that  the  same  should  be  laid  belore  them, 
and  respectfully  asked  the  favor  of  having  a  full  transcript  of  the 
same  made  out  and  sent  to  them."     They  also  further  requested  to  be 
informed  whether  the  five  millions  resolved  by  the  Senate  "  should 
be  paid  to  the  Cherokee  Indians  for  all  their  lands  and  possessions 
east  of   lie  Mississippi  river,"   "as  embracing  also  the  expenses  for 
transportation  and  subsistence  in   removal,   and   for  subsistence  for 
twelve  months  after  their  arrival  at  their  new  homes,  for  blankets, 
guns,  &c  ;  or  whether  that  sum  is  an  offer,  as  really  appears  from  the 
resoluiion  to  be,  only  for  ilie  extingnishment  of  the  Cherokee  title  to  the 
lands  east  of  the  Mississippi,  and,  for  the  houses  and  improvements  of 
the  Cherokee  Inhabitants  situated  thereon?" 


J.    K.    ROGERS.  67 

To  tliis  tlie  Secretary  responded:  "The  snm  of  $5,000,000  will, 
as  I  have  already  iuformed  you,  be  in  full  for  your  entire  cession. 
Nothing  more  will  be  paid  for  removal  or  for  any  other  purpose  or 
object  whatever.  This  letter  closes  the  intercourse  in  writing  between 
us."  We  need  not  recapitulate  what  we  have  heretofore  stated  as  the 
result  of  this  correspondence. 

The  main  question  to  be  considered  now  is,  which  of  the  parties 
were  correct  in  their  interpretation  of  the  sense  and  meaning  of  the 
resolution  of  the  Senate?  In  order  to  determine  and  settle  the  ques- 
tion fairly,  we  must  go  to  the  propositions  of  the  commissioners  made 
1o  the  Cherokee  people  in  council,  their  rejection  of  them,  and  the 
final  negotiation  of  the  treaty  of  NewEchota,  of  1835,  by  a  minority  of 
the  people. 

On  the  17th  day  of  October,  1835,  the  commissioner  on  the  part  of 
the  United  States  addressed  proposals  of  a  treaty  "  to  the  chiefs,  head- 
men, and  luarriors  of  the  Cherokee  Indians  in  general  council  assembled," 
from  which  we  make  one  or  two  extracts: 

"  The  commissioner  has  also  to  observe,  for  the  information  of  the 
general  council,  that  the  Cherokee  delegation  who  visited  Washing- 
ton last  winter,  consisting  of  Messrs.  John  Ross,  R.  Taylor,  Wm. 
Rogers,  Daniel  McCoy,  and  Samuel  Gunter,  who  were  authorized  by 
a  full  power  of  attorney,  as  your  agents,  to  settle  all  your  difficulties 
with  the  United  States,  and  enter  into  a  treaty  for  the  cession  of  your 
whole  country,  did  agree  to  sell  the  same  to  the  United  States  for 
such  a  sum  as  the  Senate  of  the  United  States  should  aivard.  The 
Senate  fixed  the  price  at  five  millions  ;  and  when  the  President  called 
upon  them,  through  the  Secretary  of  War,  to  submit  propositions  as 
to  the  manner  in  which  they  wished  this  amount  paid  and  disposed 
of,  for  the  purpose  of  embracing  the  same  in  a  treaty,  they  declined, 
OMd  proposed  that  this  matter  should,  he  referred  to  the  Cherokee  na.tion 
in  general  council  to  deliberate  and  determine  on  the  subject,  in  order  to 
prod/uce  harmony  and  good  feeling  am.07ig  themselves,  and  to  prevent  any 
wyiif't  imputations  or  prejudices  against  themselves  or  others. 

"Sliould  there  be  any  important  points  of  difference  between  the 
Glierokees  and  commissioners  in  regard  to  the  award  of  the  Senate, 
they  can  be  included  in  a  separate  and  conditional  article,  by  ivhich 
they  ivill  again  be  brought  before  the  President  and  Senate  for  their  final 
determination. 

"The  commissioners,  therefore,  wish  to  know  distinctly  whether 
the  people  of  the  Cherokee  nation,  at  this  general  council,  will  enter 
into  negotiations  for  a  treaty  on  the  basis  of  the  five  millions  of  dol- 
lars awarded  hy  the  Senate,  and  which  your  delegation,  duly  author- 
ized with  a  full  power  of  attorney,  agree  for  themselves  to  accept,  and 
urge  upon  their  people  to  close  their  cUlJiculties  with  the  United  States  hy 
a  treaty,  or  whether  they  are  determined  to  do  nothing  on  the  subject." 
— (Ibid.,  pages  G5,  60,  67.) 

The  answer  of  the  Cherokee  peo]de  to  the  above  is  as  f)llows  : 

"We,  the  people  of  the  Cherokee  nation,  in  general  council  as- 
sembled, do  hereby  solemnly  protest  against  selling  our  country  on  the 
basis  of  the  Jive  millions  of  dollars,  and  ivill  never  sanction  any  such 
reedy.     We  approve  of  and  confirm  the  nomination  and  appointment 


68  J.    K.    EOGEES. 

of  John  Boss,  principal  chief,"  and  others  named,  '^as  our  repre- 
sentatives to  the  United  States  government;  also,  of  the  powers  in 
them  vested  under  the  resolutions  of  the  general  council  annexed  ; 
and  we  unite  with  the  committee  and  council  in  forbidding  any  dele- 
gation to  treat  with  the  general  government  of  the  United  States  of 
North  America,  excepting  the  delegation  now  formally  and  openly  con- 
firmed by  us,  the  people  of  the  Cherokee  nation. 

"  Given  under  our  hands  at  the  national  council  ground,  at  Bed 
Clay,  this  24th  day  of  October,  1835."— (Ibid.,  page  80.) 

On  the  27th  October,  1835,  Mr.  Ross  informs  the  commissioner  : 

"Sir:  By  a  resolution  passed  yesterday,  (October  26,)  I  am  in- 
structed by  the  national  committee  and  council,  in  general  council 
convened,  to  acquaint  you  that  twenty  citizens  of  this  nation,  nomi- 
nated by  the  people  in  open  assembly,  and  by  them  publicly  appointed 
as  a  delegation,  fully  empowered  to  treat  finally  with  the  general  gov- 
ernment of  the  United  States,  here  or  at  Washington  city,  are  now 
ready  to  meet  any  commissioner  upon  the  subject  who  can  produce 
adequate  credentials.  If,  therefore,  you  desire  to  communicate  in 
relation  to  this  matter,  I,  as  one  of  the  delegation  thus  appointed,  am 
prepared  to  give  notice  of  any  interview  for  that  purpose  between  you, 
my  associates^  and  myself,  in  the  committee  room,  at  any  hour  which 
may  best  suit  your  convenience." 

On  the  same  day,  (October  27,)  the  commissioner  responded  : 

"  Gentlemen:  In  answer  to  your  communication  of  this  morning, 
I  assure  you  I  will  meet  you,  with  much  pleasure,  at  your  committee 
room,  at  3  o'clock  p.  m.  to-day,  as  the  commissioner  on  the  part  of 
the  United  State  to  treat  with  the  Cherokees  east." 

From  the  proposals  of  the  commissioner  submitted  to  the  delegation 
at  this  interview,  it  is  only  necessary  for  our  purpose  to  make  but  a 
single  extract: 

"  But  whereas  a  question  has  arisen  between  the  commissioner  and 
the  8 gents  of  the  Cherokee  nation,  whether  the  Senate  of  the  United 
States  intended  to  include  in  the  award  also  the  Just  claims  of  the 
Cherokee  people  against  the  United  States,  or  the  price  of  the  land  only, 
it  is  therefore  agreed  that  that  matter  shall  be  again  referred  to  the  Senate 
for  their  determination  ;  and  in  case  the  claims  ivere  not  intended  to  he 
included,  then,  in  addition  to  the  five  millions,  there  shall  be  allowed 

dollars  for  claims ;    but  if  the  Senate  shall  not  allow  this 

additional  amount,  it  shall  not  invalidate  this  treaty." — (Ibid.,  pages 
87  and  88.) 

From  the  reply  of  the  delegation  of  the  28th  of  October,  1835,  to 
the  proposals  of  the  commissioner,  a  single  extract  will  suffice  :  "  But, 
upon  examining  the  articles  you  have  submitted  to  them  as  the  basis 
of  the  treaty  you  have  to  propose,  they  can  find  in  them  no  real 
variation  from  those  against  which  the  Cherokee  nation  have  already 
openly  and  formally  protested.  It  is  true  you  offer  to  insert  an  ad- 
ditional clause,  allowing  a  consideration  for  '  the  just  claims  of  the 
Cherokee  people.'  But  this  is  only  conditional.  You  make  it  de- 
pendent upon  the  approval  of  the  Senate,  who  may  disapprove,  and 
who,  indeed,  by  the  explanation  we  have  ourselves  received  in  writing 
rom  the  Secretary  of  War,  are  sure  to   disapprove.     And  you  state 


J.    K     ROGERS.  69 

that  neither  yourself,  nor  even  the  President,  can  pledge  yourselves  for 
thisor  any  other  change,  without  the  sanction  of  the  Senate.'' — (Ibid., 
pages  90,  91.) 

On  the  29th  October  the  commissioner  replied:  "Gentlemen:  I 
have  just  received  your  communication  of  yesterday,  and  it  will  require 
some  time  to  answer  it,  which  I  shall  do  with  })leasure.  I  have  only 
now  to  request  your  delegation  to  meet  me  at  your  committee  room 
to-mori'ow  morning  at  1  o'clock  a.  m." 

On  the  same  day,  (October  29,)  the  delegation  replied,  through 
John  Ross,  to  the  commissioner  :  "  Sir  :  The  delegation  have  made 
arrangements  to  depart,  in  order  to  preparefor  their  journey  to  Wash- 
ington ;  but  it  will  give  me  great  pleasure  to  meet  you  to-morrow  at 
the  hour  you  desire." — (Ibid.,  page  92.) 

At  this  interview  the  commissioner  was  more  specific  in  his  propo- 
sals, without,  however,  enlarging  the  basis  of  negotiation,  and  again 
renews  the  provisional  proposition  :  "  But  whereas  a  question  has 
arisen  between  the  commissioner  and  the  agents  of  the  Cherokee 
nation  whether  the  Senate  of  the  United  States  intended  to  include  in 
the  award  also  the  just  claims  of  the  Cherokee  people  against  the 
United  States,  or  the  price  of  the  land  only,  it  is  thei'efore  agreed  that 
that- matter  shall  again  be  referred  to  the  Senate  for  their  determina- 
tion ;  and  in  case  the  claims  were  not  intended  to  be  included,  then,  in 

addition  to  the  $5,000,000,  there  shall  be  allowed for  claims  ; 

but  if  the  Senate  shall  not  allow  this  additional  amount,  it  shall  not 
invalidate  this  treaty." — (Ibid.,  page  94.) 

On  the  30t]i  of  the  same  month,  the  commissioner  informs  Mr.  Ross 
that  '''the  commissioners  are  instructed  to  convene  a  council  at  New 
Echota  at  such  time  as  they  think  best,  and  G-overnor  Carroll  has 
requested  and  authorized  me  to  call  said  council  when  I  deem  most 
expedient.  You  are  therefore  hereby  notified  that  the  commissioners 
will  meet  the  Cherokee  people  in  general  council  on  the  third  Monday 
in  December  next ;  and  you  are  requested  to  assemble  the  people 
accordingly  for  the  purpose  of  negotiating  and  concluding  a  treaty 
with  the  United  States," — (Ibid.,  page  93.) 

To  the  above,  the  delegation  replied  on  the  31st  of  October,  1835  : 

"  Sir  :  Neither  your  last  communication  in  writing,  nor  that  which 
you  did  us  the  honor  to  accompany  it  in  person,  appear  to  disclose 
any  views  materially  different  in  fact  from  those  upon  which  we  have 
already  decided,  although  there  may  be  some  difference  in  form.  We 
are,  therefore,  compelled  once  more  to  assure  you  that  our  former 
answer  must  be  considered  as  final,  and  our  arrangements  requiring 
despatcl'i,  we  have  closed  our  meeting  as  a  delegation,  and  shall  do  no 
further  business  until  we  arrive  at  Washington." — (Ibid.,  pp.  99, 100.) 

Thus  terminated  the  negotiation  between  the  commissioner  and 
the  legally  constituted  authoritiesof  the  nation ;  and  the  only  alternative 
left  to  the  Cherokee  people  to  save  themselves  from  expulsion  at  the 
point  of  the  bayonet  by  the  States  was  to  meet  the  commissioners  at 
New  Echota  at  the  time  designated,  and  make  the  best  and  only  treaty 
that  could  be  obtained  from  them  under  the  circumstances.  Conse- 
quently, a  minority,  and  a  bare  minority,  met  the  commissioners  at 
that  place,  and  finally  negotiated  the  memorable  treaty  of  the  29th  of 


70  •  J.    K.    EOGEES. 

December,  1835.  By  reference  to  the  journal  of  the  conncll,  it  will 
be  seen  that  the  treaty  was  not  to  be  submitted  to  the  Senate  until  after 
the  fact  was  fully  ascertained  with  regard  to  the  payment  of  claims,  as 
the  following  extract  will  show  : 

"  December  28,  1835. — The  council  assembled  at  the  council  house, 
and,  in  the  absence  of  Mr.  Gunter,  appointed  Johnson  Rogers 
chairman. 

"  The  committee  reported  that  they  had  carefully  examined  the 
propositions  for  a  treaty,  and  conferred  with  the  commissioner  on  some 
points  of  difference  as  to  spoliation  claims,  pre-emption  rights,  and 
reservations  under  former  treaties.  And  it  was  agreed  by  the  com- 
missioner that  there  should  be  a  certainty  on  the  subject  of  claims 
before  the  treaty  was  submitted  to  the  Senate.  And,  also,  that  a 
committee  should  be  appointed  of  the  Cherokee  people  to  recommend 
suitable  persons  for  pre-emption  privileges,  and  to  transact  and  settle 
all  the  business  of  the  nation  under  this  treaty  with  the  United 
States. "~(Doc.  No.  286,  p.  113.) 

The  treaty  was  formally  signed  on  the  29th,  the  first  article  con- 
taining a  provision  that  the  question  of  claims  should  be  again  submitted 
to  the  Senate  for  their  consideration  and  decision.  In  order,  therefore, 
to  ascertain  with  certainty  the  question  that  was  again  to  be  submitted 
to  the  Senate,  it  became  necessary  to  show  not  only  how  the  matter 
of  arbitrament  was  first  brought  before  the  Senate,  but  also  to  give 
the  contemporaneous  history  of  the  negotiation  of  the  treaty^  based  as 
it  was  on  the  resolution  or  av/ard  of  the  Senate.  This  duty  has  been 
carefully  and  faithfully  performed,  and  there  can  be,  it  seems  to  us, 
but  little  difference  of  opinion,  if  any,  as  to  what  the  (j[uestion  was 
that  was  again  to  be  submitted  to  the  Senate.  The  original  propositions 
of  the  delegation  that  were  before  the  Senate  when  the  resolution  was 
adopted  ;  the  language  of  the  resolution  itself ;  the  address  of  Gen. 
Jackson  to  the  Cherokee  people,  and  provisional  articles  inserted  in 
the  proposals  of  the  commissioners  to  treat,  to  say  nothing  at  present 
of  the  agreement  contained  in  the  journal  of  the  council  who  negotiated 
the  treaty  ; — all  goes  to^prove  with  unerring  certainty  the  question 
that  was  again  submitted  to  the  Senate. 

Having  stated  that  the  resolution  as  reported  by  the  Secretary  of 
War,  in  his  letter  of  March  G,  1835,  to  the  Cherokee  delegation,  and 
as  inserted  in  the  1st  article  of  the  treaty,  is  a  correct  transcript  or 
copy,  and  the  Senate  having  left  no  clue  or  record  evidence  to  show 
that  they  intended  to  convey  an)^  other  meaning  than  the  terms  of  the 
resolution  signify,  we  shall  claim  the  full  benefit  of  their  legal  in- 
terpretation :  this  we  now  do  to  the  very  letter,  upon  the  ground  that 
the  resolution  is  the  decision  of  the  Senate  on  the  question  of  arbitra- 
ment ;  and  said  resolution  being  inserted  in  the  treaty,  necessarily  be- 
comes part  and  parcel  of  it,  if  not  the  very  treaty  itself,  and  both 
parties  are  bound  by  its  terms. 

The  agreement  of  the  commissioner  (as  the  journal  of  the  council 
shows)  was,  that  there  should  first  "be  a  certainty  on  the  subject  of 
claims  before  the  treaty  was  submitted  to  the  Senate"  for  ratification. 
How  was  that  ^^  certainty"  to  be  ascertained?  The  injunction  had 
not  been  removed  from  the  proceedings  of  the  Senate,  and  it  being 


J.    K    ROGERS.  71 

impossible  for  the  treaty  to  be  submitted  until  the  fact  was  kno'.vn^  it 
was  finally  suggested  that  a  statement  from  some  of  the  senators  who 
voted  for  the  resolution  in  executive  session  would  be  quite  as  bind- 
ing on  the  parties  as  if  the  question  were  again  referred,  and  formally 
decided  by  the  Senate.  Tlie  suggestion  was  acquiesced  in  ;  conse- 
quently, on  the  29th  day  of  February,  1835,  three  of  the  senators  who 
voted  for  the  resolution,  viz:  Mcjssrs.  Cuthbert  and  King,  of  Georgia, 
and  Mr.  King,  of  Alabama,  addressed  the  President  the  following 
note : 

-'  To  the  President  of  the   United  Slates  : 

^'We  have  no  hesitation  in  stating  it  to  be  our  impression,  sir,  that 
the  Senate  of  the  United  States  did  not  intend  that  the  allowance  for 
spoliations  or  the  expenses  of  removal  should  be  deducted  from  the 
amount  of  five  millions  recommended  to  be  offered  to  the  Cher(»kees  as 
the  price  of  their  territory.  It  is  also  our  confident  opinion  that  the 
Senate  will  readily  add  six  hundred  thousand  dollars  to  the  sum  of 
five  millions  to  meet  these  two  expenditures. 
^'With  the  greatest  respect j 

"A.  CUTHBERT. 
''JOHN  P.   KING. 
"WILLIAM  R.  KING. 
"February  29,  1836." 

This  letter  and  the  instructions  of  the  Secretary  of  War  to  tlie  com- 
missioners were  obtained  from  the  executive  clerk  of  the  Senate, 
copies  of  which  are  herewith  submitted. 

The  opinion  thus  expressed  and  adopted  was  clearly  in  favor  of  the 
construction  insisted  upon  by  the  Cherokees,  and  against  that  at- 
tempted to  be  enforced  by  the  Secretary  of  War  and  those  acting 
under  him,  and  settled  all  doubts  as  to  what  was  the  true  interpreta- 
tion of  the  terms  used  in  the  resolution — "  lands  and  possessions" — in 
favor  of  the  Indians.  The  question  being  thus  definitely  settled, 
the  supplementary  articles  were  added,  not  upon  the  principle,  as 
stated  in  the  2d  article,  "  whereas  the  Cherokee  people  have  sup- 
posed that  the  sum  of  $5,000,000^"  for  that  question  was  no  longer  a 
supposable  one  ;  but  was  a  settled  and  fixed  fact  in  favor  of  the  Cher- 
okees, "that  the  Senate  of  the  United  States  did  not  intend  that  the 
allowance  for  spoliations  or  the  expenses  of  removal  should  be  de- 
ducted fvoxn  the  amount  of  $5,000,000  recommended  to  be  offered  to 
the  Cherokees  as  the  j^nce  of  their  territory."  The  $5,000,000,  then, 
being  intended  by  the  Senate  "  a.s  the  price  of  the  Cherokee  territory" 
only,  the  Secretary  of  War  and  those  under  him,  as  we  have  before 
remarked,  were  not  only  wrong  in  attempting  to  force  a  construction 
repugnant  to  the  legal  interpretation  of  the  words  in  the  resolution, 
but  the  commissioner  was  also  guilty  of  perpetrating  a  gross  fraud 
upon  the  subsequent  opinion  of  those  senators  as  expressed  to  the 
President,  by  imposing  on  the  Cherokees  the  supplementary  articles 
as  they  now  stand  for  that  ojiinion;  for  we  unhesitatingly  state  noio 
and /oret;er,  that  their  letter  was  never  exhibited  to  the  Cherokees  by 
the  commissioner,  and  they  never  saw  it  until  years  afterwards,  in 


72  J.    K.   ROGERS.  ' 

the  printed  documents  of  the  Senate.  If  they  had  seen  it  previonslj 
to  entering  into  the  supplement,  one  article  instead  of  three  would 
have  heen  quite  sufficient  to  cover  what  those  senators  state  in  the 
conclusion  of  that  letter,  viz:  "It  is  also  our  confident  opinion  that 
the  Senate  will  readily  add  six  hundred  thousand  dollars  to  the  sum 
of  five  millions  to  meet  these  two  expenditures.''  That  this  letter  was 
before  the  Senate  at  the  time  they  ratified  the  treaty  and  supplement, 
is  apparent  from  the  fact  of  its  being  found  among  the  printed  docu- 
ments of  that  body.  How  does  its  language  correspond  with  that 
used  in  the  3d  article  of  the  supplement?  By  placing  the  two  in  jux- 
taposition, there  can  be  no  difficulty  in  discovering  a  wilful  misrepre- 
sentation on  the  part  of  the  commissioner,  by  lugging  into  said  arti- 
cle objects  foreign  to  the  letter.  Why  add,  "and  all  claims  of  every 
nature  and  description  against  the  government  of  the  United  States 
not  herein  otherwise  expressly  provided  for,  and  to  be  in  lieu  of  the 
said  reservations  and  pre-emptions,"  when  he  must  have  known  the 
$600,000  was  intended  to  meet  two  expenditures  07ily,  viz  :  spoliations 
and  the  expenses  of  removal  ? 

Is  it  not  clear,  therefore,  if  $600,000  was  not  sufficient  to  cover 
spoliations  and  the  expenses  of  removal,  the  excess,  if  any,  could  not 
be  ^^ deducted'''  from  the  five  millions  authorized  by  the  resolution  of 
the  Senate  to  be  given  to  the  Cherokees  as  "/^e  price  of  their  ter- 
ritory f  It  was,  it  is  true,  an  addition  to  that  sum,  but  the  addition 
did  not  release  the  responsibility  of  the  United  States  to  pay  more,  if 
the  two  objects  to  be  accomplished  by  it  amounted  to  more  than 
$600,000,  inasmuch  as  the  Senate  did  not  intend  that  that  expendi- 
ture should  be  deducted  from  the  five  millions  at  all.  Such,  evidently^ 
was  the  opinion  of  the  senators  to  whom  the  question  was  submitted, 
and  their  opinions  not  being  questioned  or  denied  by  the  Senate 
afterwards,  we  are,  upon  every  principle  of  justice  and  good  conscience, 
entitled  to  the  full  benefit  of  it,  as  a  settlement  of  the  contested  ques- 
tion by  the  Senate  in  favor  of  the  Cherokees. 

Having  thus  shown,  by  the  contemporaneous  history  of  the  negotia- 
tion of  the  treaty  of  1835^  what  question  was  again  to  be  submitted  to 
the  Senate,  and  having  shown  how  and  by  whom  that  question  was 
settled,  it  is  needful  now  to  inquire  whether  the  opinion  was  a  justi- 
fiable exposition  of  the  intention  of  the  Senate.  And  in  order  to  do 
so,  it  is  only  necessary  to  refer  to  the  proceedings  of  the  Senate  on  the 
ratification  of  the  treaty  and  supplement. 

On  the  5th  day  of  March,  1836,  the  President  sent  the  following 
message : 

"  To  the  Senate  of  the  United  States: 

"I  submit  to  the  SenatCj  for  their  advice  and  consent  as  to  the 
ratification  of  the  same,  the  treaty,  and  the  supplement  to  it,  recently 
concluded  with  the  Cherokee  Indians.  The  papers  referred  to  in  the 
accompanying  communication  from  the  Secretary  of  War,  as  necessary 
to  a  full  view  of  the  whole  subject,  are  all  herewith  submitted. 

"ANDREW  JACKSON.'* 

(Senate  Journal,  first  session,  twenty-fourth  Congress,  p.  570.) 


J.    K.    ROGERS.  73 

And  on  tlie  23d  day  of  May  following  tlie  Senate  passed  tliis  reso- 
lution : 

^'■Resolved,  (two-thirds  of  the  senators  present  concurring,)  That 
the  Senate  do  advise  and  consent  to  the  ratification  of  the  treaty  be- 
tween the  United  States  of  America  and  the  Cherokee  Indians,  con- 
cluded at  New  Echota  the  29th  of  December,  1835,  together  with  the 
supplementary  articles  thereto,  dated  the  1st  day  of  March,  1836,  with 
the  following  amendments." — (Senate  Journal,  same  session  and  Con- 
gress, p.  575.) 

We  come  now  to  consider  the  only  question  of  importance  at  issue 
in  our  case  ;  and,  as  we  have  seen,  the  Senate  did  not  intend  that  the 
alloivance  for  spoliations  or  the  expenses  of  removed  shoidd  be  deducted 
from  the  amount  of  five  millions  recommended  to  be  offered  to  the 
Cherokees  "as  the  price  of  their  teri^itory,"  and  the  |600,000  not 
being  sufiiuient  for  "these  tioo  expenditures,"  we  would  ask,  in  the 
spirit  of  fair  and  honorable  dealing,  how  could  the  United  States, 
with  justice  or  propriety,  come  back  to  the  five  millions,  and  deduct 
therefrom  the  excess  ?  The  same  can  be  said  with  regard  to  subsist- 
ence, as  the  terms  used  in  the  resolution  of  tne  Senate  does  not  admit 
of  any  other  construction.  Thus  the  treaty  was  "invalidated"  by 
the  addition  of  the  supplement,  and  the  items  of  spoliation,  removal, 
and  subsistence,  named  in  the  15th  article  as  being  deductable,  were 
not  to  be  deducted,  but  were  abrogated  just  as  much  as  if  an  article 
had  been  inserted  for  that  purpose — the  effect  being  the  same  by  im- 
plication and  construction. 

We  insist,  then,  that  the  Secretary  of  War,  Mr.  Poinsett,  and  Con- 
gress were  right  in  recommending  and  passing  the  act  of  June  12, 
1838,  by  which  |1, 047, 000  was  appropriated  "in  full  for  all  objects 
specified  in  the  3d  article  of  the  treaty  of  1836  between  the  United 
States  and  the  Cherokees,  and  for  the  further  object  of  aiding  in  the 
subsistence  of  the  Indians  for  one  year  after  their  removal  west." 
The  act  was  only  carrying  into  effect  an  obligation  of  the  government, 
and  therefore  the  legislation  was  strictly  legal,  and  not  a  gratuity,  as 
has  generally  been  supposed.  The  facts  presented  certainly  justify 
such  a  conclusion.  These  facts,  too,  were  in  the  possession  of  the  Sec- 
retary of  War  and  Congress  at  the  time  the  act  was  passed  ;  and  may 
we  not,  with  perfect  propriety,  venture  the  opinion  by  saying,  had 
these  facts  been  in  the  possession  of  the  Court  whilst  they  were  adju- 
dicating the  case,  would  not  their  decision  have  been  different?  We 
humbly  trust  so  ;  and  the  only  excuse  we  have  now  to  offer  for  not 
presenting  them  previously  was  the  strict  reliance  placed  on  the  afore- 
said act  of  the  obligations  of  the  government  to  pay  the  excess,  and 
considering,  as  we  had  a  right  to,  that  that  question  was  thereby 
fully  and  finally  settled  in  favor  of  the  Cherokees. 

Should  the  Court  consent  to  hear  argument  of  counsel  on  the  mo- 
tion to  grant  a  new  trial,  we  think  we  shall  be  liilly  able  to  prove 
that  the  Executive  regarded  subsistence  for  one  year  after  removal 
limited  to  $33  33,  and  did  not  go  beyond  this  sum  in  any  contract 
entered  into  for  that  purpose.  The  $172,316  47  expended  for  sub- 
sistence one  year  after  removal^  "  was  furnished  to  the  Indians  when 
in  great  destitution,  upon  their  own  urgent  application,  after  the  ex- 


74  *■  J.    K.    ROCJEES.     ■ 

piration  of  the  one  year,  upon  the  understanding  that  it  was  to  he  de- 
ducted from  the  moneys  due  them  under  the  treaty," — (Senator  Se- 
bastian's report,  page  10.) 

Witli  regard  to  the  expense  of  the  Cherokee  committee,  named  in 
the  12th  aiticle  of  the  treaty  of  1835,  we  would  only  remark,  in  con- 
tradistinction to  the  opinion  of  the  court,  that  if  it  was  a  national 
committee,  acting  for  and  in  behalf  of  the  Cherokee  nation,  it  never 
had  an  'existence  as  such  previous  to  the  date  of  said  treaty,  or,  in 
other  words,  it  was  the  creature  of  the  treaty;  and  in  either  event  the 
expenditure  on  their  account,  if  reimbursable  at  all  by  the  Cherokees 
to  the  United  States,  should  have  been  reimbursed  out  of  their 
national,  and  not  their  per  capita  fund.  We  are  strict  construction- 
ists, and  adhere  to  the  doctrine  that  treaties  between  nations,  like 
compacts  between  States^  are  not  to  be  warped  to  suit  the  convenience 
of  the  hour  of  either  or  any  party. 

The  per  capita  fund  was  not  national,  in  the  strict  sense  and  mean- 
ing of  that  term,  but  belonged  individually  to  every  man^  woman, 
and  child  composing  the  Cherokee  nation,  and  the  United  States  had 
no  legal,  express,  or  implied  right  to  touch  that  fund,  except  for  the 
purposes  contem])lated  by  the  treaty.  By  this  assumption  of  right  on 
the  part  of  th?  Executive  of  the  United  States,  the  per  capita  fund 
was  reduceil  that  amount,  and  individuals  have  been  made  to  reim- 
burse the  United  States  out  of  their  private  purses,  when  the  burden 
should  have  been  borne  by  the  common  treasury  of  their  nation. 
There  was  no  authority  for  this,  unless  it  were  the  law  of  power  ; 
certainly  no  such  right  vests  in  the  treaty. 


Washington,  January  1,  1856, 


J.  K.  KOGERS. 


in  the  court  of  claims. 
Johnson  K,  Rogees  vs.  The  United  States. 
Brief  of  U.  S.  Solicitor  on  amended  petition. 

When  this  claim  was  before  the  Court  on  the  original  petition,  the 
amount  claimed  was  |92,625  19,  which  was  arrived  at  mainly  by 
adopting  the  settlement  under  the  treaty  of  1846  with  the  old  settlers 
as  the  basis  of  settlement  with  the  claimants  who  are  not  old  settlers, 
and  to  whom  neither  the  provisions  of  the  treaty,  in  respect  to  old 
settlers,  nor  the  reasons  for  those  provisions,  apply. 

But  even  on  that  basis,  by  the  4th  article,  spoliations,  removal  and 
subsistence  were  to  be  charged  to  the  treaty  fund,  and  were  charged 
in  the  account  taken,  on  which  the  claimant  relied. 

Now,  however,  on  his  amended  petition,  he  claims  that  the  account 
shall  be  taken  without  these  items  altogether,  and  that  his  claim 
amounts  to  $171,719  29. 

It  is  true  he  inserted  in  his  original  petition  that  he  might  have 
claimed  more,  and  that  the  $5,000,000  fund  was  not  chargeable 
with  these  items  at  all  ;  and  the  Court  considered  most  of  the  argu- 


J.    K.    KOGERS.  75 

ments  which  are  now  offered  on  this  point,  in  passing  on  the  original 
petition,  although  the  claim  in  that  petition  was,  as  I  have  said, 
based  chiefly  on  the  account  rendered,  in  which  the  right  to  charge 
this  fund  with  these  items  was  assumed. 

Tlie  principal  ground  now  I'elied  on,  not  heretofore  presented,  to 
maintain  this,  is^  that  the  Senate,  in  March,  1835,  by  resolution, 
stated,  as  their  opinion,  that  a  sum  not  exceeding  $5,000,000  should 
be  paid  to  the  Cherokee  Indians  for  all  their  lands  and  possessions  east 
of  the  Mississippi  river.  That  this  was  an  award  between  the  chiefs 
and  the  President,  who  could  not  agree  about  the  amount.  That  it 
is  distinctly  stated  in  the  resolve  as  the  price  of  the  land,  &c.  When 
the  treaty  and  supplement  were  subsequently  made  in  December, 
1835-'36,  the  question  which  had  arisen  between  the  Executive  and  the 
Indians  as  to  the  meaning  of  the  Senate's  resolve  it  was  agreed  should 
be  referred  to  the  Senate;  and  if  it  should  appear  that  the  $5,000,000 
was  not  intended  to  include  these  items,  then  it  was  further  agreed 
that  such  further  provision  should  be  made  by  the  Senate  as  might 
appear  just  to  the  Senate;  an  article  was  submitted  with  a  blank,  for 
the  same  to  be  filled  up  with  such  sura  as  the  Senate  should  deem  a 
proper  provision  in  that  case. 

This  was  the  3d  article  of  the  supplement,  in  which  a  fund  of 
$600,000  is  provided  to  cover  these  and  '■'■all  claims  of  every  nature 
and  description  not  herein  otherwise  provided  for." 

This  is  called  an  appropriation  in  the  argument  of  the  claimant, 
and  the  common  case  of  too  small  an  appropriation.  It  is  not  so.  It 
is  a  treat}'  provision,  and  is  a  part  of  that  award,  and  within  the 
terms  of  that  submission  of  which  so  much  is  said  in  the  claimant's 
argument.  The  Senate  was  not  only  the  arbiter  to  decide  whether 
the  disputed  items  were  embraced  in  their  offer,  but  the  arbiter  also 
to  determine  what  further  provision  should  be  made  in  the  event  that 
these  items  were  not  within  the  fund. 

This  may  seem  an  extraordinary  provision,  because,  as  it  is  argued 
by  the  claimant,  it  would  seem,  if  the  United  States  were  bound  to  pay 
any  portion  of  these  items,  it  would  be  proper  to  pay  all;  and  there 
would  seem  to  be  no  propriety  in  stipulating  at  all,  further  than  to  fix 
the  liability — much  less  stipulating  for  a  specific  sum  in  advance  of  the 
ascertainment  of  the  actual  amount.  But  whether  common  or  not, 
and  wliether  the  mode  which  would  seem  most  proper  and  reasonable 
to  us  or  not,  is  not  material.  It  is  certain  that  this  was  the  course 
which  it  was  deemed  just  by  the  Senate  to  pursue ;  and  it  is  not  com- 
petent for  the  Court  to  review  its  action,  for,  besides  that,  it  is  the 
action  of  the  Senate  on  a  subject  within  its  jurisdiction,  as  the  treaty- 
making  power.  It  was  the  decision  of  the  body  to  which  the  Chero- 
kees  referred  the  question  of  fact  as  to  the  extent  of  its  offer,  and  the 
question  of  what  was  "just"   to  make  good  that  offer. 

The  claimant  thinks  it  not  just  that  the  fund  should  be  charged  with 
any  portion  of  these  items,  and  the  injustice  of  it  is  admitted  because 
the  Senate  agreed  to  add  to  the  fund.  It  would  be  easy  to  justify  the 
Senate's  action,  if  it  was  necessary,  and  to  show  that  the  Senate,  as 
well  as  the  Executive,  have  acted,  and  have  continued  to  act,  with 
extreme  liberality,  and  that  the  clamor  which  has  been  made  about 


76  J.   K.   ROGERS. 

imposition  on  the  Indians  is  merely  in  aid  of  attempts  to  impose  on 
tlie  government. 

We  are  here,  however,  now  to  construe  the  treaty  and  not  to  discuss 
its  justice,  and  it  would  be  improper  to  go  into  such  considerations. 

The  treaties  of  1828  and  183B,  and  the  treaties  with  other  tribes, 
providing  for  the  supply  "of  a  good  rifle,  a  blanket  and  kettle,  and 
five  pounds  of  tobacco,  to  every  Indian,  on  enrolling  himself  for  emi- 
gration," and  stipulating  also  to  pay  "the  cost  of  emigration  of  all 
such,"  and  "  support  by  the  way,  and  for  twelve  months  after  the 
arrival  at  the  agency,"  have  no  application  to  the  case. 

That  treaty  and  supplement  was  intended  to  induce  individual  emi- 
gration, and  those  who  received  the  benefits  of  it  were  to  be  enrolled. 
Each  particular  case  was  the  subject  of  arrangement.  The  treaty  of 
1835-'36  provided  for  the  removal  of  the  tribe,  the  purchase  of  their 
whole  property  for  a  given  sum,  and  regulated  the  distribution  of  the 
purchase- money  per  capita  after  the  payment  of  the  expenses  of 
removal,  subsistence,  &c. 

There  is  no  such  inconsistency  or  repugnancy  between  the  8th  and 
15th  articles  of  the  treaty  as  to  authorize  the  assumptions  that  either 
was  not  in  force.  The  Court  has  already  passed  on  the  supposed  con- 
flict in  these  articles,  and  decided  that  there  is  none,  and  that  they  are 
consistent.  In  addition  to  what  is  said  in  the  opinion  on  this  point,  I 
would  suggest  that  the  schedules  accompanying  the  treaty,  showing 
the  estimates  upon  which  the  sum  to  be  paid  was  fixed,  are  conclusive 
that  these  articles  should  stand  together.  These  show  that  it  was  not 
intended  that  there  should  be  much,  if  any,  surplus  money  for  distri- 
bution. General  Jackson  and  the  Senate,  and  the  able  men  who  have 
had  to  deal  with  those  subjects,  knew  full  well  that  such  money  was 
worse  than  thrown  away.  When  they  had  provided  a  fertile  tract  of 
land  in  the  west,  payment  for  the  improvements  of  individual's  ferries 
and  other  individual  property  in  the  tribe,  and  to  enable  them  to  erect 
improvements  in  their  new  homes,  and  remove  them  to  their  new 
homes,  subsisted  them  for  twelve  months,  and  stipulated  for  annuities, 
shops,  &c.,  anything  more  was  not  only  waste,  but  was  merely  given 
to  the  white  men,  and  half-breeds,  and  headmen,  for  their  own 
purposes. 

It  was  because  the  $5,000,000  recommended  by  the  Senate  did  not 
enable  Ross  to  fill  his  private  purse  that  he  flew  from  his  solemn 
agreement  with  General  Jackson,  in  March,  1835,  and  not,  as  is  said 
in  the  argument  here,  because  General  Jackson  did  not  furnish  him 
the  minutes  of  the  Senate  or  abide  by  the  award  ;  for  when  that  pretext 
was  made  it  was  offered  to  him  to  submit  the  question  again  to  the 
Senate,  on  the  treaty,  and  he  flew  from  it,  and  preferred  to  subject  his 
people  to  all  the  distress  they  suffered,  rather  than  forego  the  oppor- 
tunity of  enriching  himself. 

It  is  apparent,  on  the  face  of  his  proceedings,  and  even  in  his  offer^ 
that  it  was  the  money  he  stuck  out  for,  and  not  the  honor  of  his 
fathers. 

General  Jackson  dealt  with  things  and  not  with  forms.  He  knew, 
as  everybody  knows,  that  the  Indians  were  a  dependent  people,  to  be 
disposed  of  and  dealt  with  kindly^  as  far  as  practicable,  but  their  re- 


J.    K.    ROGERS.  77 

moval  was  a  necessity.  Ross  and  his  confederates  knew  this  as  well 
as  he  did,  and  wished  to  take  advantage  of  it  for  their  private  ends, 
and  the  General  would  not  permit  them.  Ross  struggled  hard,  found 
supporters  in  Congress,  and  managed  to  get  some  money  out  of  it  ; 
but,  in  the  end,  although  he  made  a  great  deal  of  trouble,  and  com- 
mitted man}''  shocking  crimes,  had  to  submit. 

He  carried  on  for  years  a  pretty  good  business,  and  he  and  others 
who  have  taken  on  themselves  the  business  of  taking  care  of  the  poor 
Indians,  have,  like  the  intendent  in  Gill  Bias,  done  a  good  business 
for  themselves  in  taking  care  of  the  affairs  of  the  poor. 

This  trade  Congress  intended  by  the  act  of  2'7th  of  February,  1851, 
quoted  in  my  former  brief  in  this  case,  to  put  an  end  to,  and  I  hope 
that  the  Court  will  reconsider  this  construction  of  that  act. 

It  was  not  intended,  therefore,  by  the  treaty,  to  do  more  than  to 
give  the  Indians  a  new  home,  remove  them  to  it,  enable  them  to  put 
up  similar  improvements  to  those  left  behind,  support  them  for  a  year, 
and  start  them  under  new  auspices  in  a  course  of  civilization.  The 
eighth  article  guarantied  this  from  the  United  States  ;  and  although 
by  the  fifteenth  article  the  fund  was  charged  with  it  in  the  first  in- 
stance, if  the  fund  had  proved  insufficient,  the  government  would 
have  been  bound  to  pay  the  difference.  It  was  thought  to  be  ample, 
and  it  was  no  doubt  deemed  best  to  make  such  a  fund,  and  hold  out 
the  temptation  of  a  surplus  to  give  the  chiefs  and  the  tribe  generally 
a  pecuniary  interest  and  the  hope  of  a  surplus,  in  order  to  induce 
economy. 

The  Court  has  already  declared  that  the  law  of  1838,  and  the  de- 
cision of  the  Senate  in  1850,  are  not  constructions  of  the  treaty  and 
supplement. 

The  Court  expresses  the  opinion  tliat  the  proviso  of  the  act  requiring 
a  receipt  in  full,  on  payment  of  the  money  thus  appropriated,  does 
not  apply  to  the  claimants,  because  they  are  not  now  a  part  of  the 
Cherokee  nation. 

I  reply,  that  none  of  the  money  thus  appropriated  was  to  be  paid 
to  the  Cherokee  nation  in  its  corporate  capacity.  That  is  expressly 
provided  against  in  the  appropriation  itself,  and  was  previously  pro- 
vided against  in  the  treaties  of  1835  and  1846.  The  money  was  to 
be  paid  to  the  individuals  per  capita.  To  make  any  payment,  there- 
fore, it  is  necessary  to  construe  the  language  to  mean  the  Cherokee 
people.  But  the  Court  say  that  it  must  be  taken  to  apply  only  to 
individuals  then  composing  that  section,  and,  as  these  did  not  then 
form  a  part  of  it,  they  are  not  concluded.  This  construction  would 
also  have  concluded  them  from  receiving  the  money.  This  was  not 
intended.  It  was  an  ajjpropriation  expressly  for  paying  off  all  de- 
mands whatever,  under  any  treaty  heretofore  made  with  the  Cherokees. 
These  persons,  though  no  longer  members  of  the  Chei'okee  nation, 
were  Cherokees  in  one  sense,  and  were  entitled,  by  the  twelfth  article, 
to  the  per  capita  appropriated  in  the  act  of  1851.  The  receipt  to  be 
given  was,  therefore,  it  seems  to  me,  equally  conclusive  against  all 
Cherokees  claiming  under  any  treaty,  whether  they  were  then  citi- 
zens of  the  United  States  or  continued  members  of  the  tribe. 

M.  BLAIR,  Solicitor. 


78  ■  J.    K.    ROGERS. 


J.  K.  KoGERS  VS.  The  United  States. 

ScARBURGH,  J.,  delivered  the  opinion  of  the  Court: 

The  petitioner  has  heen  permitted  to  file  an  amended  and  substi- 
tuted petition  in  the  place  of  his  original  petition,  and  we  have  been 
called  upon  to  reconsider  our  former  judgment.  The  case  has  again 
been  argued  with  great  ability  on  both  sides,  and  we  have  carefully 
re-examined  it. 

In  our  former  opinion  we  held  that  the  sums  expended  for  removal, 
subsistence,  and  spoliations  were  properly  chargeable  to  the  treaty 
fund  ;  that  the  expense  of  removal  and  subsistence  was  limited — of  the 
one  to  twenty,  and  of  the  other  to  thirty-three  dollars  and  thirty-three 
cents — only  in  regard  to  such  of  the  Cherokees  as,  under  the  8th 
article  of  the  treaty  of  1835-'36,  were  allowed  to  remove  and  subsist 
themselves  ;  and  that  the  expense  of  the  committee  appointed  under 
the  12th  article  of  the  treaty  was  properly  chargeable  against  the 
Cherokees.  Our  conclusion  was,  that  the  facts  set  forth  in  the  original 
petition  do  not  furnish  any  ground  for  relief. 

Much  stress  is  laid  in  the  amended  petition  on  the  8th  article  of  the 
treaty  of  1828,  which  the  petitioner  insists  was  in  full  force  at  the 
time  the  treaty  of  1835-'36  was  made.  That  was  a  treaty  between 
the  Cherokee  nation  of  Indians  west  of  the  Mississippi  and  the  United 
States.  The  Cherokees  east  of  the  Mississippi  were  not  parties  to  it, 
or  in  any  respect  bound  by  it.  The  8th  article  of  that  treaty  was  a 
more  proposition  to  the  latter,  and  to  entitle  them  to  the  benefit  of  it 
they  must  not  only  show  an  acceptance  of  it  on  their  part,  but  an  ac- 
ceptance in  the  very  terms  in  which  it  was  offered.  But  it  is  not,  and 
cannot  be,  pretended  that  they  ever  thus  accepted  it.  It  seems  to  us, 
therefore,  to  be  wholly  unnecessary  for  us  to  consider  the  character  of 
the  obligation  which  it  would  have  imposed  upon  the  United  States, 
if  it  had  been  thus  accepted.  The  treaty  of  ]835-'36,  so  far  from 
being  an  acceptance  of  that  proposition,  makes  no  reference  whatever 
to  it.  Whether,  at  the  time  of  the  making  of  the  latter  treaty,  it  was 
at  all  in  the  minds  of  the  high  contracting  parties  is,  and  must  forever 
be,  a  matter  of  mere  conjecture.  In  reference  to  the  subjects  em- 
braced by  the  proposition,  the  treaty  of  1835-'36  has  its  own  stipula- 
tions, which,  upon  the  making  of  the  treaty,  became  obligatory  upon 
the  parties  to  it.  The  rights  and  obligations  of  the  parties  in  reference 
to  those  subjects  grow  out  of  those  stipulations,  and  not  out  of  the 
unaccepted  proposition.  The  former  is  a  complete  contract,  whilst 
the  latter  was  a  mere  offer,  which,  not  having  heen  assented  to  by  the 
eastern  Cherokees,  is  now  a  mere  nullity. 

The  petitioner  insists  that  the  question  submitted  to  the  Senate  by 
the  treaty  was,  whether  the  five  millions  of  dollars  were  not  the  price 
of  the  lands  of  the  Cherokees.  Upon  this  point  we  can  look  only  to 
the  treaty.  Its  language  is  plain  and  explicit.  The  1st  article  recites 
the  resolution  of  the  Senate,  and  submits  the  question  whether  the 
Senate  in  that  resolution  included  spoliations.  Afterwards  the  par- 
ties, by  the  2d  and  3d  supplementary  articles,  not  only  enlarged  the 
submission  so  as  to  include  removal  as  well  as  spoliations,  but  actually 


J.    K,    ROGERS.  79 

framed  the  awards  and  agreed  that  it  should  become  a  part  of  the 
treaty,  if  the  Senate  should  approve  of  it.  The  lan<i;uage  of  these 
articles  is  too  plain  to  leave  room  for  construction.  They  clearly  do 
not  sustain  che  position  of  the  petitioner. 

Looking  at  the  award  of  the  iSenate  as  we  find  it  in  the  3d  supple- 
mentar}^  article,  we  have  not  been  able  to  discover  any  ground  what- 
ever for  the  proposition  that  the  treaty  Avas  framed  with  a  double 
aspect,  so  that  if  the  Senate  should  decide  in  favor  of  the  Oherokees, 
then  the  8th  article  should  stand  unqualified  by  the  loth  article  ;  but 
if  the  decision  of  the  Senate  should  be  unfavorable  to  them,  then  the 
15th  article  should  stand  and  qualify  the  8th  article.  If  such  was  the 
intention  of  the  parties,  they  onght  so  to  have  expressed  themselves. 
The  treaty  as  it  now  stands,  whether  we  consider  it  in  itself,  or  as 
connected  with  the  circumstances  under  which  it  was  made,  is  sus- 
ceptible of  no  such  construction.  The  8th  and  15th  articles  are  en- 
tirely consistent  with  each  other,  and  admit,  it  seems  to  us,  of  no 
other  construction  than  that  which  we  j)ut  upon  them  in  our  former 
opinion. 

Entertaining  these  views,  we  cannot  assent  to  the  proposition  that 
"the  $600,000  was  not  given  as  a  finality,  bat  it  was  the  concession 
of  a  right,  and  to  meet  expenditures  for  which  the  United  States  were 
bound."  The  stipulation  for  the  payment  of  six  hundred  thousand 
dollars  may  be  regarded  as  the  concession  or  recognition  of  a  right  to 
the  award  of  the  Senate  upon  the  subjects  submitted  to  that  body, 
but  of  no  other  right ;  and  when  ratified  by  the  Senate,  it  became  a 
part  of  the  treaty,  and  entitled  the  Cherokees  to  the  payment  of  that 
sum  of  money,  to  be  applied  to  the  purposes  mentioned  in  the  3d  sup- 
plementary article.  But  this  was  its  whole  effect.  Nor  can  we  say 
that  "  it  was  a  fraud  on  the  Cherokees  to  state  the  piirposes  for  which 
this  $600,000  was  given,  as  they  are  stated  in  the  3d  article  of  the 
supplement — that  is,  for  all  claims  of  every  nature,  &c.,  reservations, 
pre-emptions,  &c."  We  do  not  suppose  that  Congress  has  conferred 
on  this  Court,  even  if  it  have  the  power  to  do  so,  jurisdiction  to  inquire 
into  a  fraud  alleged  to  have  been  committed  by  the  treaty-making 
department  under  the  Constitution  of  the  United  States.  We  must 
take  the  treaty  in  all  its  parts  as  we  find  it.  If  a  fraud  has  been 
committed  in  the  making  of  the  treaty,  this  Court  has  no  power  to 
afford  relief. 

The  petitioner  treats  the  stipulation  for  the  payment  of  $600,000 
as  an  appropriation  to  be  applied  pro  tanto  in  discharge  of  an  existing 
obligation  on  the  part  of  the  United  States.  But  this  is  not  its  char- 
acter. It  is  but  a  treaty  stipulation^  and  not  an  appropriation.  By 
it  the  United  States  became  bound  to  pay  that  sum  of  money  for  the 
purposes  therein  mentioned,  but  it  imposed  or  recognized  no  other 
obligation.  If  more  was  intended,  its  language  ought  to  have  been 
different.  We  cannot  make  a  treaty  ;  we  are  called  upon  merely  to 
say  what  is  the  meaning  of  that  which  was  made  ;  and  we  have 
already  seen  that  there  was  no  such  previously  existing  obligation  as 
that  insisted  upon  by  the  petitioner.  Thence  we  were  fully  warranted 
in  saying,  in  our  former  opinion,  that  the  fact  that  the  United  States 


80 


J.    K.    ROGEKS. 


limited  the  sum  conclusively  shows  that  they  intended  thereby  to 
limit  the  extent  of  their  obligation. 

In  regard  to  the  construction  of  the  statutes  which  have  been  en- 
acted since  the  date  of  the  treaty  of  1835-'36,  and  the  effect  of  the 
treaty  of  1846,  we  have  found  no  reason  to  change  the  views  which 
we  have  heretofore  expressed.  We  think,  too,  that  there  is  no  error 
in  our  former  opinion  in  regard  to  the  expense  of  the  committee  ap- 
pointed under  the  12th  article  of  the  treaty  of  1835-'36. 

We  are  of  the  opinion  that  the  facts  set  forth  in  the  amended  peti- 
tion of  the  claimant  do  not  furnish  any  ground  for  relief,  and  we  do 
not,  therefore^  authorize  the  taking  of  testimony  in  this  case. 


UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


00032204935 


FOR  USE  ONLY  IN 
THE  NORTH  CAROLINA  COLLECTION 


